





To be Argued, if permitted, by 
LAURENCE ARNOLD TANZER. 


Court of Appeals 


OF THE STATE OF NEW YORK. 


STEPHEN R. CLEVELAND, individually and as 
Commissioner of the Board of Water Works of 
the City of Watertown, and others, 

Respondents, 
vs. 


THE CITY OF WATERTOWN, and others, 
Appellants. 


BRIEF ON BEHALF OF THE MUNICI- 
PAL GOVERNMENT ASSOCIATION 
OF NEW YORK. 








WINFRED T. DENISON, 
LAURENCE ARNOLD TANZER, 
as amici curiae. 








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LIST OF POINTS. 


PAGE 


PREFOUUCTOrY StALEMENL 1... el ce eee eee 


Point I.—Decision not only out of harmony 
with the established principles of munici- 
pal government in New York, but with 
general policy of the other States ...... 


Point I1.—Political Expediency of Act not for 
Sete COCEIININE LION, oercci ied = ors o's eralere aie 


Point I1I.—Not unconstitutional to allow lo- 
cal control over administration of Assess- 
ments, Public Safety, Health, Charity and 
PieenSiie Gar MM DEr sani. seer. oy ss + o's 

First. Former charter of Watertown, 
and most charities in the State equal- 
ly subject to this objection ........ 

Second. Act does not affect city’s exist- 
ing substantive powers but only 
MeCTHOUVOU CXETCISG oes Skis oes 

Third. Decision ignores character of 
cities as governmental subdivisions 
and agencies of the State .......... 

Fourth. Decision inconsistent with 
policy of fostering local home rule... 

Fifth. The precise functions held not 
subject to delegation to local govern- 
ments have all been authoritatively 
held subject to such delegation ...... 


1. Functions of assessors ........- 
2. Functions of public safety..... 
B® [SRA heli NU) ee ei 


Ot 


14 


19 


23 


ue 
Or 


PAGE 


ids 


Or 


- Kunctions of-charity -. 5. eee 


5. Function of examining plumbers 57 
6. Other similar functions ....... 58 


Sixth. The extent to which local gov- 
ernments shall be given control over 
such functions is discretionary with 
Legislature : .% 0) aS tres eee eee 59 


Point IV.—Const. Art. III, Sec. 1, not vio- 
lated by the provisions relative to repeal 68 
Point V.—Barto vs. Himrod, inapplicable ... 82 


Point VI.—Const. Art. III, Sec. 1, and Art. 
XII, Sec. 1, not violated because of 
city control over number and duties of 
officers; Act not incomplete ............ 87 


Point VII.—Const. Art. XII, Sec. 1, relative 


to restriction of taxation not violated .. 109 
Point VIII.—Const. Art. XII, Sec. 2, relative 
to special city legislation not violated... 116 


Point [X.— Federal constitutional guaranty 
of republican form of government not 
VIOlated ias din srei> sae ep nee ee - ne 
Point X.—The act, being susceptible of con- 
structions which will sustain it, cannot 
be made invalid by construing it other- 
WIS 7, dsc eatorecee vs ec etae > ni, at ar 119 
Point XI.—The objections are to provisions 
which ‘are separable .7) 7. -... seamen 122 


Conclusion. 2 76s. sed, i > bn ares «| Je 


ts 


Gmut of Appeals 


STATE OF NEW YORK. 





STEPHEN R. CLEVELAND, individu- 
ally and as Commissioner of 
the Board of Water Works of 
the City of Watertown, and 
others, 

Respondents, 


VS. 
THE CITY OF WATERTOWN, and 


others, 
Appellants. 





INTRODUCTORY. 


This is an appeal from a judgment of the Ap- 
pellate Division for the Fourth Department, af- 
firming, by a vote of three to two and on the opin- 
ion below, the Supreme Court of Jefferson County 
which had adjudged the unconstitutionality of the 
optional City Government Law (Laws 1914, c. 
444), and restrained the City of Watertown from 
proceeding to organize the form of City Govern- 
ment it had elected to adopt thereunder. 

As the decision annuls the entire act, it is neces- 
sary to describe it before discussing the particular 
points. 

The purpose of the act, as declared in the title, 
is to authorize cities of the second or third class 
“to adopt a simplified form of government.” It 
permits any city of the second or third class, by ref- 
erendum vote, to adopt in place of its existing char- 


2 


INTRODUCTORY. 


ter one of several forms of government set forth 
in the act ($23). The act, in effect, provides seven 
different optional forms of city charter, any one of 
which a city may adopt for itself. The plans are 
designated by different letters and may be briefly de- 
scribed as: A—commission government, with each 
city department in charge of a commissioner; B— 
commission government, with the commission col- 
lectively supervising the city departments; C—the 
commission manager plan; D—the mayor and coun- 
cil plan, with a council of five elected at large; 
K—the same, with a council of nine elected at 
large; F—the same, with a council elected by 
wards; and G—the plan of the second class cities 
law, made available for third class cities. 

With respect to each of these plans the act pre- 
scribes the composition and powers and duties of 
the principal executive and legislative departments 
of the city government and leaves to them the regu- 
lation of details. 

In case a third class city adopts the second class 
cities law, it is governed by the provisions of that 
law (§120); thus making applicable Sections 74 
and 40 of the second class cities law, under which 
the Board of Estimate and Apportionment and 
the council respectively are empowered to fix and 
determine the salaries or compensation and posi- 
tions and numbers of all city officers and em- 
ployees and to regulate their powers and duties. 
With respect to the other plans of government, 
the optional city government law confers upon the 
governing body or officers of the city like power 
to determine the number and positions and com- 
pensation of the city officers and employees and 
to regulate their powers and duties ($§74, 76, 82, 
B3)2, 100 p- 


3 


INTRODUCTORY. 


The Court held the act unconstitutional sub- 
stantially on the grounds that it violates Article 
III, Section 1, and Article XII, Section 1, of the 
Constitution by delegating to cities power over 
matters in which the state has an interest; that it 
violates Article III, Section 1, and Article XII, 
Section 1, of the Constitution by authorizing cities 
to determine the number of their officers and 
employees and their powers and duties; and so, 
as the Court claims, allowing cities in effect 
to frame their own charters; that it violates 
Article III, Section 1, of the Constitution by dele- 
gating too broad a power to repeal acts of the legis- 
lature; that it violates Article III, Section 1, of 
the Constitution by delegating to the council power 
to complete an incomplete act of the legislature; 
and that it violates Article XII, Section 1, of the 
Constitution by failing sufficiently to limit the tax- 
ing power of municipalities. The Court also in- 
timated, without deciding, that the form of govern- 
ment chosen by the people of Watertown—the com- 
mission-manager plan—violates the requirement of 
a republican form of government. 

The Court held that the provisions of the act 
which it holds to be unconstitutional are so inter- 
woven with the whole scheme and purpose of the 
act as to vitiate the whole statute and render it 
void. 

We contend that the act is not open to any of 
the objections raised; that the powers delegated to 
cities are only those powers of local self-govern- 
ment which the Legislature has power to grant; 
that the act does not permit cities to frame their 
own charters, but establishes several forms of 
charter and defines the powers of the governing of- 
ficers and bodies under each form of charter and 


4. 


INTRODUCTORY. 


validly authorizes the people of any city to choose 
which of these charters they will adopt, and that 
the power granted to the city government to regu- 
late matters of detail is a power which it was in 
the discretion of the Legislature to grant; that 
there is no unlawful delegation of power to repeal 
acts of the Legislature but only the right on the 
part of the city to exercise a lawfully delegated 
power to pass ordinances which may have the effect, 
by virtue of the act itself, of superseding provisions 
of special and local statutes; that the act is a com- 
plete act calling for no further action to make it 
effective other than the vote of the electors of any 
city accepting one of the charters for that city and 
the exercise by the city government of the powers 
lawfully delegated; and that the act does not vio- 
late the command of the Constitution to place such 
limits on the taxing powers of the city as the Legis- 
lature may deem wise. An objection taken by 
counsel for the plaintiffs below, but not sustained 
by the Court, that the act should have been sub- 
mitted to the local authorities for their assent as 
a special city bill is also, we contend, without 
foundation. We also contend that there is no 
foundation for the intimation of the Court below 
that the commission-manager plan violates the re- 
quirements of a republican form of government. 
We contend that if there is any doubt as to the 
meaning of the act, it is to be construed so as to 
be constitutional; and that even if the Court 
should hold some portion or portions of the act 
to be open to objection, the entire act is not there- 
by made invalid. 

The presiding Justice below filed a dissenting 
memorandum, in which Justice de Angelis con- 
curred. 


5 
POINT I. 


The decision below places this 
State not only out of harmony with 
its own established principles of local 
government, but also out of harmony 
with the widespread practice in the 
other States of the Union. 


Pervading the opinion below is the idea that this 
is a novel and extraordinary and revolutionary 
step in the method of legislative grants of munic- 
ipal charters. Of course that would be no constitu- 
tional objection, even if it were so, but the fact is 
that the same essential principles have been recog- 
nized for a long time both in this State and else- 
where, and they are now widely accepted and in 
force in all parts of the country. A progressive 
‘measure the Act doubtless is, dealing with the 
problem in a broad way; but analysis will fail to 
recall any feature of it that does not conform to 
our established political practice and ideals. 

Certainly there is nothing novel about the grant 
of a new charter to a city. Nor is there anything 
new about an optional provision, making it de- 
pendent on the vote of the people whether the new 
charter shall become operative. Optional laws, de- 
pendent for their operation in any particular 
locality on -a vote of the electors of that locality, 
have been passed and approved from early days. 

As recent instances of the growing practice of 
making legislative charters depend upon a popular 
vote (in addition to the constitutional submission 
to the city officials) may be cited the charters 
enacted by the legislature for Buffalo (Laws 1914, 
ch. 217, §398), Batavia (Laws 1914, ch. 354, $217), 


6 


Point I. 


Olean (Laws 1914, ch. 436, §8413-422) and Me- 
chanieville (Laws 1915, ch. 70, $119). 

Such acts have always been held not to fall with- 
in the doctrine of Barto vs. Himrod, 8 N. Y., 483, 
which held a state-wide referendum on a legislative 
question to be unconstitutional, and the Court be- 
low does not criticise the present Act on any such 
ground, deferring to the following conclusive auth- 


orities: 


Rome Bank vs. Rome, 18 N. Y., 38; 

Starin vs. Genoa, 23 N. Y., 439; 

Bank of Chenango vs. Brown, 26 N. Y., 
467, 472-4; 

Corning vs. Greene, 23 Barb., 33; aff’d 26 
Nas, Ai2n; 

Clarke vs. Rochester, 28 N. Y., 605; 

Village of Gloversville vs. Howell, 70 N. 
Vira 

Gilbert R. Co. vs. Kobbe, 70 N. Y., 361, 
374; 

People ex rel. Unger vs. Kennedy, 207 
N. Y., 5838, 544. 

Cooley’s Const. Limitations, 118; 

2 Dillon on Municipal Corporations, Sec. 
6311 ; 

26 Cyc., pages 366, 367, 391; 

McQuillin Municipal Corporations, Sec. 
643 and note page 686, id.; 

St. Johnsbury vs. Thompson, 59 Vt., 301. 


The above authorities are all squarely in point, 
and their theory is accurately represented by the 
following passages from the opinions in the leading 
two of them: 


7 


Point I. 


In Bank of Chenango vs. Brown, 26 N. Y., 467, 
472-4, the Court explained the distinction as 
follows: 


“The case of Barto vs. Himrod, decided that 
the legislature does not possess the power to 
submit to the people of the State the question 
whether an act shall or shall not become a law; 
* * * Tt is a material distinction, however, 
between the cases, that the people of a par- 
ticular mumeipality or local body are not the 
constituents of the legislature. They are not 
the people of the State of New York, who have 
irrevocably committed their power of legisla- 
tion to the legislature, by a delegation which 
does not permit that legislature to remand any 
legislative question to their constituency. A 
city or town or a village is a separate recog- 
nized local body, which, without exercising 
legislative power, may signify, if permitted, 
its assent or dissent to any grant or with- 
drawal of powers or privileges. 


And in People ex rel. Unger vs. Kennedy, 207 
N. Y., 533, 545, the Court again stated it as follows: 


“Starting with and fully accepting the ele- 
mentary proposition involved in and decided 
by the Barto case, we find that subsequent de- 
cisions have declared that the doctrine of that 
case should not be pushed beyond the question 
there involved and that the legislature may 
pass a statute which is a completed law affect- 
ing or conferring rights upon a restricted 
locality but to become operative only in the 


8 


Pornt I. 


event of an affirmative vote by the people of 
such locality.” 


A law by which the people of the locality are 
given the option of choosing any one of several 
charters provided by the legislature is not in prin- 
ciple different from a law giving them the option of 
choosing or rejecting a single charter; and so the 
Court below does not criticize the law in this 
respect. 

Before the enactment of the present law, most of 
the other states had optional charter laws. The 
statutes of Ohio (Laws 1913, Page & Adams’ Ann. 
Gen. Code, Supplement 1916, vol. 1, page 933 seq.), 
Virginia (Laws 1914, ch. 94, Pollard’s Suppl, 1916, 
page 914), Massachusetts (Laws 1915, ch. 267) and 
North Carolina (Laws 1917, ch. 186), contain pro- 
visions similar to the present act giving cities the 
choice of any one of several forms of charter. 

Many of the other states give cities the option 
of adopting a commission or commission manager 
charter. Among those are Arkansas (Laws 1914, 
page 48, Kirby & Castle’s Digest, 1916, page 1612) ; 
Idaho (Laws 1911, ch. 82, page 280; Laws 1917, 
ch. 79); Illinois (Laws 1910, page 12, 1 Jones & 
Addington’s Ann. Sts. 1913, page 1149, Laws 1915, 
page 316, Callaghan’s Dlinois Sts. 1916, page 204) ; 
Iowa (Laws 1917, Supp, Iowa Code, 362) ; Kansas 
(Laws 1907, ch. 114, Kansas Gen. Sts. 1915, page 
303, Laws 1909, ch. 82, ibid page 384, Laws 1913, 
ch. 128, §27, ibid 426, Laws 1917, ch. 86) ; Kentucky 
(Laws 1910, ch. 163, 2 Kentucky Statutes 1915, 
page 1718, Laws 1914, ch. 477, ibid, page 1786) ; 
Louisiana (Laws 1912, act 207; 2 Marr’s Ann. R. S. 
1687) ; Mississippi (Laws 1908 ch. 108, Laws 1912, 


9 


Pornt I. 


ch. 120) ; Missouri (Laws 1913, page 420) ; Montana 
(Laws 1911, ch. 57, Laws 1917, ch. 152) ; Nebraska 
(Laws 1911, ch. 24, R. S. 1913, page 1501, Laws 
1917, ch. 208) ; Nevada (Laws 1915, ch. 192) ; New 
Mexico (Laws 1913, ch. 76, 2 N. M. Ann. Sts. 1915, 
page 1105); North Dakota (Laws 1907, ch. 45, 
Laws 1911, ch. 67); South Carolina (Laws 1910, 
page 523, 1 Code 1912, page 841, Laws 1912, pages 
793, 814); South Dakota (Laws 1907, ch. 86, 1 
Compiled Laws 1908, page 322, Laws 1913, ch. 
119) ; Tennessee (Laws 1913, ch. 49) ; Texas (Laws 
1909, page 189, Revised Civ. Sts. 1911, page 255, 
Laws 1918, ch. 21); Washington (Laws 1911, ch. 
116, 3 Remington & Ballinger Ann. Code and Sts. 
1914, page 740); Wisconsin (Laws 1909, ch. 387, 
Wisconsin Sts. 1911, page 474); Wyoming (Laws 
1911, ch. 84). 

A great many cities have organized under the 
provisions of these laws and their constitutionality 
has been uniformly upheld. 


Annotated Cases, 1912, C. page 1,000; 

Eckerson vs. City of Des Moines, 137 
Towa, 452; 

Cole vs. Dorr, 80 Kan., 251; 

Bryan vs. Voss, 143 Ky., 422; 

State ex rel. Hunt vs. Tausick, 64 Wash., 
69 ; 

People ex rel. City of Springfield vs. 
Edwards, 252 Il, 108; 

Kessler vs. Fritchman, 21 Idaho, 30; 

State ex rel. Baughn vs. Ure, 91 Nebraska, 
BLS 

Mayor vs. State, 102 Miss., 6638; 

State ex rel..Simpson vs. City of Man- 
kato, 117 Minn., 458; } 


10 


Point I. 


Mumn vs. Finger, 66 Fla., 577; 
State ex rel. Bloomer vs. Canavan, 155 
Wis., 398. 


As we show infra, any limitation on the manner 
in which or the extent to which the legislature may 
grant to local legislative bodies the power to de- 
termine the machinery of their own local govern- 
ment would be in derogation of the plenary power 
of the legislature over state and local government 
as well as contrary to the principle of home rule, 
which favors broad grants of power and local self- 
government. It would also run counter to the long 
continued practice in this state and in the country 
generally, of granting local powers in broad and 
general terms. 

It is true that the Commission or City Manager 
forms of City government are relatively new de- 
velopments, but they do not involve any revolu- 
tionary constitutional principles, and they have 
been widely adopted throughout the country. The 
opinion below does not attack their constitution- 
ality as forms, but only a feature which generally 
(though not necessarily) accompanies them in 
practice, namely, broad rather than narrow local 
powers. 

There is nothing revolutionary or even novel 
about that grant of power. The recognition of 
its validity by the courts in the cases cited infra, 
almost without discussion and as a matter of 
course, is due to the fact that such grants have 
been common and a well-recognized exercise of 
legislative power from the earliest periods of our 
history. 

These City Manager or Commission forms have 
been adopted in a large number of cities in all 


11 


Pornt I. 


parts of the country. According to statistics pub- 
lished in “Equity” for October, 1916, at least the 
folowing number of cities had come under this 
plan: 


Alabama, 12 cities 
Arizona, pled 
Arkansas, 7 th 
California, Pay 
Colorado, Res 
Connecticut, Sars 
Florida, ior ys 
Georgia, oes 
Idaho, yale 
Illinois, 44. 
Iowa, loa 
Kansas, 46°" -“ 
Kentucky, Gras 
Lousiana, Pith 
Maine, ape 
Maryland, Vs od tae 
Massachusetts, ot iedy 
Michigan, a ea" Bs 
Minnesota, ih 
Mississippi, SF hhh 
Missouri, Ons 
Montana, Ane i 
Nebraska, te 
Nevada, ras 
New Jersey, 8 ae aid: 
New York, a 
North Carolina, airs 
North Dakota, diije & 
Ohio, LO 
Oklahoma, 2a87 


Oregon, + 


12 : 


Pornt I. 
Pennsylvania, i ice 
South Carolina, Ae 
South Dakota, pe ees 
Tennessee, gC 
Texas, ta ee 
Utah, Bidet? 
Virginia, Desh 
Washington, Ak 
West Virginia, Rahs 
Wisconsin, 14 “ 
Wyoming, Paes 


a total of 534 cities in 42 states; and the number 
has increased since the foregoing statistics were 
compiled. 

Statutes providing for such methods of munic- 
ipal government by commission, with or without a 
city manager, and centering in the commission or 
in the commission and manager the executive and 
legislative powers of the city, to the same extent, 
and sometimes to a greater extent than is pro- 
vided by the present act, have uniformly been sus- 
tained by the courts. 


Brown vs. City of Galveston, 97 Tex. 1; 

Eckerson vs. City of Des Moines, 137 Ia., 
452, 461, 466; 

Walker vs. Spokane, 62 Wash., 312; 

Bryan vs. Voss, 143 Ky., 422; 

People vs. Edwards, 252 Tll., 108; 

State ex rel. Baughn vs. Ure, 91 Neb., 31; 

State ex rel. Simpson vs. City of Mankato, 
117 Minn., 458; 

People vs. Prevost, 55 Colo., 199. 


The cities in New York State which have come 
under commission government are, in addition to 


13 


PorntT I. 


Watertown, the following: Beacon, Buffalo, 
Mechanicville, Newburgh, Niagara Falls, Saratoga 
Springs, Sherrill, and White Plains. 

The present act substantially follows the pre- 
cedents set by this long series of legislative acts 
and court decisions. While broad in its terms, it 
introduces no new principle, no substantial de- 
parture from the former course of legislation. Its 
enactment was, it is submitted, well within the 
discretion vested in the legislature. 

There is no force to the argument that the law 
will lead to conflicts and uncertainties. On the 
contrary, any conflicts that may arise will be no 
greater or more difficult than those daily arising 
between a municipal ordinance enacted under a 
special charter and the provisions of that charter 
or of the general laws of the state. The present 
act has this great advantage, that, instead of call- 
ing for the application in each city of different 
special laws applicable to that city alone, the 
source of authority will be found in a single 
statute applying alike to all the cities of the state, 
and giving each of them the power to adapt its 
local ordinances to the local conditions. The act 
affords a uniformity of authority, combined with 
flexibility in its execution, which will avoid the 
difficulties necessarily entering into any attempt 
to enact uniform legislation for an entire class of 
cities—difficulties which were pointed out in 
People ex rel. Clancy vs. Supervisors, 139 N. Y., 
524, 529, 530. 

It would seem preposterous to attack, as novel 
or unconstitutional, a form of municipal govern- 
ment which has been adopted to such an extent in 
all sections of the country, and which has uni- 
formly been sustained by the courts. 


14 
Point II. 


POINT II. 


The wisdom of substituting a smail 
city council with full and conspicu- 
ous responsibility in place of the cid 
system of a large council with limit- 
ed and obscure responsibility and 
subject to complicated restraints, in- 
cluding the Mayor’s veto, was en- 
tirely a question of political policy 
upon which the courts have no con- 
stitutional power to reverse the Leg- 
islature’s judgment. 


We assume we need not enter upon any argu- 
ment or elaboration of authorities to the proposi- 
tion that a court has no right to set aside a stat- 
ute or a vote of electors, because of a difference of 
opinion regarding political expediency, but from 
the multitude of decisions to this effect we may 
invite the Court’s attention to the following as 
especially pertinent to this present situation. 


People vs. Draper, 15 N. Y., 582, 545-6; 

People ex rel. City of Rochester vs. Briggs, 
50 N. Y., 553, 558, 559, 568; 

People ex rel. Bolton vs. Albertson, 55 N. 
Y., 50, 54; 

Matter of Application of Mayor, 99 N. Y., 
569, 584-5 ; 

People vs. Crane, 214 N. Y., 154, 172, 173. 


Yet, notwithstanding this thoroughly established 
principle, it seems to us that no one can read the 
opinion of the Trial Court, now adopted by the 


15 


Point IT. 


Court below (two justices dissenting), without the 
conviction that its conclusion was largely con- 
trolled by precisely such a difference of opinion 
‘between the Courts on the one hand and the 
Legislature and the people of Watertown on the 
other. ; 

The Court, for example, expressly criticized the 
new charter on the ground that it eliminated re- 
straints on the city council, which the Court con- 
sidered to have been imposed “in the interest of 
the residents and taxpayers of the city,” and gave 
the new council “power to pass ordinances hay- 
ing the force of law of whatever kind or nature it 
pleases” “without any limitation or restraint what- 
ever, Save as to” certain specified subjects. 

Similarly the Court criticized the new charter 
on the ground that it “takes away the qualified neg- 
ative of the Mayor over” what the Court stated to 
be the danger of “hasty and inconsiderate action by 
the council.” 

Amplifying these views and discussing the rela- 
tive provisions of the old charter and the new one, 
from what seems to us a point of: view only of 
political expediency, the Court dwelt upon the fact 
that the old charter provided for the municipal 
government “with much detail” and “at great 
length,’ and “places many restraints upon the 
governing body,” and that “the method of city 
government is set forth at length” that “the char- 
ter sets forth at great length the subjects on which 
it (the common council) is authorized to enact 
ordinances,” and that it has no power to direct 
any extraordinary expenditure except upon a two- 
thirds vote of its members, nor until such an ex- 
penditure has been authorized by the taxpayers at. 


16 
Pornt Ii. 


a special election held for that purpose,” and that 
the appointive officers are “to be appointed by the 
Mayor, with the consent of the common council;” 
and against these assumed merits of the old char- 
ter, the Court contrasts the provision of the new 
one in which the responsibility is clearly central- 
ized on a small council over which the Mayor, while 
a member, has “no power of veto.” 

All these matters, including the question wheth- 
er “the interest of the residents and taxpayers of 
the City” might not be rather sacrificed than con- 
served by the old charter system of diluted and ob- 
scure responsibility and including the question 
whether the check by conspicuous responsibility to 
the electorate itself was not a better remedy against 
possible “hasty and inconsiderate action by the 
council” than even the veto power of a Mayor, are 
clearly of political, rather than judicial cognizance. 

Here we have, not only the vote of the electors of 
Watertown, but a statute of the Legislature of the 
State deciding authoritatively the question whether 
the City Council should possess large and clear-cut 
responsibilities, centralized in a small number of 
members and subject to account directly to the 
electorate. 

It is not the concern of the courts whether this 
decision so made by the Legislature and the people 
of Watertown was wise; but if it were a question 
open for such discussion, the public history of the 
enactment must suffice. 

Long experience in the operation of our democe- 
racy had demonstrated the wide-spread and disas- 
trous failure of our machinery of municipal govern- 
ment throughout the country. The fact had at- 
tracted the attention of all observers of our institu: | 


17% 
Point IT. 


tions, and had been, for example, a point of severe 
criticism by Bryce in his “American Common- 
wealth,” as well as by other observers, both foreign 
and American. A long struggle had occurred to 
remedy these evils, and there had gradually evolved 
a consensus of public opinion that the dissipation 
of responsibility was a chief cause of the failure. 

In our own state, after long agitation, the mat- 
ter was taken up by the Municipal Government As- 
sociation, a non-partisan state wide organization, 
having an active membership in every county of 
the state, and affiliations with numerous city organ- 
izations. The President of this Association was 
Hon. John K. Sague, formerly Mayor of Pough- 
keepsie, and its Vice-Presidents were Hon. Henry 
L. Stimson, late Secretary of War, Hon. Charles E. 
Treman, of Ithaca, Dr. Albert Shaw (of the Re- 
view of Reviews), Dr. John H. Finley, State Com- 
missioner of Education, Prof. Jeremiah W. Jenks, 
and Mr. Isaac N. Seligman. 

This Association made the original suggestion 
of the bill which has now become the Optional City 

rovernment Law. 

The bill was made a part of the programme of the 
State Conference of Mayors and other City Offi- 
cials, and after thorough consideration by all in- 
terests, it was formally drafted and introduced at 
the Session of 1912, in the Senate by Senator Frank- 
lin D. Roosevelt, now Assistant Secretary of the 
Navy, and in the Assembly by Assemblyman Minor 
McDaniels. The regular Session of 1912, not hav- 
ing acted on it, forty-two mayors of second and 
third class cities in this state submitted a peti- 
tion to the Governor, asking him to call an extra- 
ordinary session of the Legislature for its consider- 


a 


18 
Point II. 


ation. This the Governor did, and thereupon the 
bill was introduced in the Senate by Senator John 
FE. Murtaugh, then Chairman of the Judiciary Com- 
mittee, and in the Assembly by Assemblyman Aar- 
on J. Levy, the majority leader, It passed the Sen- 
ate unanimously and the Assembly with but four 
negative votes. 

At this time when the bill so became a law of 
this state, there remained only eight states in the 
whole Union which had not provided some similar 
means by which cities were allowed to adopt char- 
ters of the simplified type, similar to that which 
the court below has held to be void and unconsti- 
tutional. 

Especially under such circumstances, we submit 
that the Court went far beyond its powers in oppos- 
ing its judgment relative to the interests of the 
residents and taxpayers,against that of the Legis- 
lature and the electors themselves. 


19 
POINT III. 


The courts below erred in holding 
the charter to have violated Article 
III, Section 1 and Article XII, Section 
1 of the Constitution by permitting 
LOCAL control over the LOCAL ad- 
ministration of Assessments, Public: 
Safety, Health, Charity, and the Li- 
censing of Plumbers. 


Probably the principal one among the points 
made by the trial Court, whose opinion was adopted 
below, was that the Legislature could not allow 
cities to control even the local operation of Assess- 
ments, Public Safety, Health, Charity, and the 
licensing of Plumbers; this for the alleged reason 
that those matters “are not purely municipal but 
involve the performance of State functions” and 
duties “in which the people at large have an in- 
terest.”” The trial justice analyzed the powers of 
each of the existing Boards on the subjects men- 
tioned and then stated what seems to us the nub 
of the decision, as follows: 


“Tt is clear, therefore, that all of the above 
Boards perform functions of a State character 
and the effect of the statute is to permit the 
City Council to legislate for the State at large 
with regard to the performance of their 
duties. This, as we have seen, is beyond the 
domain of legislative power.” 


The Court does not, and cannot claim that the 
statute gives the Cities any powers extending 
geographically beyond their boundaries and out in- 
to the State at large. The point relates only to 
the nature of the functions which the City authori- 
ties are to exercise within the City limits, and it is 


20 
Point III. 


asserted that they cannot include asssessments, 
public safety, health, charity, and plumbers’ exam- 
inations, because even local administration of these 
subjects is of interest to the whole State and a 
“State function.” 

We shall discuss later the revolutionary charac- 
ter of this proposition, its denial of the essential 
character of Cities as governmental subdivisions 
and agencies of the State erected for the very pur- 
pose of administering such subjects locally, and its 
ruinous effect (if sustained) on any maintenance 
of the Home Rule principle which has been so often 
asserted by this Court, but let us first point out the 
absence of any support for it from either of the 
two cases which alone are cited by the Trial Court 
as establishing it. They are McGrath vs. Grout, 69 
A. D., 814-320 and Stanton vs. Board of Supervisors, 
191 N. Y., 435 (fols. 228-229). The McGrath case is 
not in point. The question there was, whether 
the bill making the office of Sheriff of Kings County 
a Salaried office, was a bill “relating to the property, 
affairs or government of cities,” within the meaning 
of Article XII, Sec. 2 of the constitution, so as to 
require submission to the local authorities. The 
court held that it was not, because it dealt with a 
county office, not with a city office. The court did 
not limit the Legislature, but held the Legislature 
free of a limitation which was claimed to restrict 
it. 

The Court of Appeals in affirming the judgment, 
171 N. Y., 7, placed its decision squarely upon the 
ground that the County had been maintained as an 
organization distinct from the City, and that the 
County remained entirely within the legislative 
control. 


at 
Point ITT. 


That case is, therefore, no authority for the pro- 
position for which it is cited by the Court below 
that: ; 

“If the powers sought to be exercised * * * 
in fact concern the people at large, or if they 
involve the performance of functions which 
are of a State character, they cannot be de- 
legated to the municipality” (fols. 229-230). 


Nor does Stanton vs. Board of Supervisors, 191 
N. Y., 429, 4385, lay down any such proposition. 
On the contrary, that case held that the Legislature 
might leave the location of a county seat to a vote 
of the electors of the County, on the ground, quoted 
from Clarke vs. City of Rochester, 28 N. Y., 605, 
that 

“while general statutes must be enacted by 
the legislature, it is plain the power to make 
local regulations, having the force of law, in 
limited localities, may be committed to the 
other bodies representing the people in their 
local divisions, or to the people of those dis- 
tricts themselves.” 


The Court then added: 


“We thus have distinctly presented the 
difference between enactments pertaining to 
the whole State, and those pertaining to 
localities, and such distinction is not left to 
those which are local or general laws; for 
general laws may be and in certain cases must 
be exacted, which pertain to localities only. 
And especially is this true with reference to 
county seats; for the legislature is prohibited 
from passing any private or local bill locating 
or changing county seats.” 


The distinction taken by the Court in the case 
cited was thus the very opposite of the distinction 


yy 
Point ITI. 


expressed by the Court below. The Court below 
distinguished between acts pertaining to a locality 
according as the subject matter of the act does 
or does not concern the State on a matter in which 
the locality acts as agent for the State. This Court, 
on the other hand, takes no such distinction, but 
it relies on the clear distinction between an act 
pertaining geographically to the whole State, and 
an act pertaining to localities, and holds that Acts 
pertaining to localities may delegate powers ir- 
respective of the general or local character of the 
subject matter. The case is thus an authority di- 
rectly contrary to the position taken by the Court 
below. 

The dissenting memorandum of Mr. Justice 
Kruse in the Court below meets the point we are 
discussing as follows: 


“But it is contended that there are certain 
provisions in the Act itself which attempt to 
confer upon, the local authorities legislative 
power. But that may be done by the legislat- 
ure if confined within the sphere of local self- 
government (Stanton vs. Board of Supervisors, 
191 N. Y., 428; Village of Saratoga vs. Sara- 
toga Gas, Electric Light & Power Co., 191 N. 
Y., 128, 151), because, as is said by Chief 
Judge Cullen in the last case cited, 


‘It is in conformity with the general 
‘principle which prevails with us of foster- 
‘ing local self-government.’ 


Even certain governmental and administrat- 
ive functions which affect the people of the 
state as a whole may be delegated to a muni- 
cipal corporation as a state agency, to be ex- 
ercised within its territorial limits, and the 


23 
Pornt ITT. 


municipality may be empowered to make 
ordinances upon the subjects thus committed 
to it, and such ordinances have the force of 
law within the territorial limits over which 
their jurisdiction extends; such as the care 
and control of highways (People vs. Kerr, 27 
N. Y., 188; Village of Carthage vs. Frederick, 
122 N. Y., 288; People ex rel. Collins vs. 
Ahearn, 198 N. Y., 441; City of Buffalo vs. 
Stevenson, 207 N. Y., 285) ; Public safety and 
public health; (Metropolitan Board of Health 
vs. Heister, 37 N. Y., 661; Polinsky vs. People, 
13 N. Y., 65; People ex rel. Liebermann vs. 
Vandecarr, 175 N. Y., 440; City of Rochester 
vs. Macauley-Fien Co., 199 N. Y., 207; People 
vs. Kaye, 212 N. Y., 407).” 


The authorities here cited by Mr. Justice Kruse 
were cited to the Courts below and seem to us con- 
clusive, but no effort was made to distinguish them 
and we are in the dark as to how they were 
avoided. 

We venture to say that there is no shred of af- 
firmative authority for the proposition which lies 
at the basis of the decision below. 

The proposition is also opposed to the following 
principles and authorities. 


FIRST.—If the local administration 
of the functions stated cannot be en- 
trusted to the local government, then 
the former charter of Watertown 
under which the present Commission- 
ers, who are plaintifis herein, hold 
office is unconstitutional for the same 
reason—as well as practically all 
other existing city charters. 


These very functions, which the Court says can- 
not be delegated to the local governments, are now 


24. 
Point IIL. 


being exercised by the local government of Water- 
town under its former charter, just as they are 
being exercised by every local government in the 
State. 

Under the former Watertown charter (lL. 1897 
c. 760), the existing Commissioners (plaintiffs 
herein) having jurisdiction over these very subjects 
were appointed by the Mayor and common council 
of Watertown ($10); their salaries are controlled 
by the common council of Watertown (§ 386) ; 
which has the power to try them for misfeasance 
($ 39); and also the power to pass ordinances to 
control them (‘preservation of order, peace, health, 
safety and welfare,” §43) ; and the power to regu- 
late their duties (§49). 

If, as the Court below says, the Legislature can- 
not grant to the cities the local control of these 
matters, it seems clear that this former charter 
was equally unconstitutional, and, as stated above, 
we doubt if there is a valid City Government in 
the whole State. 


SECOND.—The Act now before the 
Court does not in any way extend or 
affect the city’s existing powers, but 
only places within the control of the 
common council authority to replace 
or rearrange the machinery or pro- 
cedure for exercising those powers, 
which authority itself is to be exer- 
cised subject to the restrictions con- 
tained in the Act or incorporated 
therein by reference. 


As a matter of fact, the law here under attack 
does not change the subject matters entrusted to 


25 
Pornt ITT. 


the cities at all, but only the machinery of opera- 
tion, and so is not open to the criticism below as 
to its alleged encroachment on subject matters ex- 
clusively belonging to the State. 

This clearly appears from the title of the Act it- 
self, “An Act to authorize a city of the second or 
third class to adopt a simplified form of govern- 
ment,” and runs all through its provisions. Sec- 
tion 4 continues the legislative powers of the city, 
and provides that they shall not be abridged or im- 
paired, but shall be possessed and exercised by 
“the legislative body of the city.” Section 5 pro- 
vides, “The existing corporate powers of a city 
shall not be construed to have been abridged or 
impaired by the provisions of this Act, but the same 
shall be exercised as herein provided.” Section 6 
reads, “Nothing in this Act shall be construed to in 
any way impair or affect any duty or liability now 
imposed by law upon a city.” Section 7 continwes 
all existing ordinances and regulations not incon- 
sistent with this act; Section 8 continwes in force 
the Charter of the city and all special or general 
laws applicable thereto, not inconsistent with this 
Act, “until and unless superseded by the passing of 
ordinances regulating the matters therein provided 
for”’—i. e., until the exercise of the regulatory 
power granted by Section 37. 


The powers granted by Section 37 are: 

(1) To confer by ordinance upon any officer or 
employee of the City any powers, or to impose upon 
any such officer or employee any duties theretofore 
conferred or imposed upon any officer or employee 
by provision of law, i. e., to transfer from one offi- 
cer or employee to another any powers or duties 


26 
POINT ITI. 


created by existing law, and subject to all provi- 
sions of existing law; and upon transfer of all the 
powers of any officer or employee, to abolish his 
office. 


(2) To regulate by ordigance the exercise of 
any power and the performance of any duty by any 
officer or employee of the city. 


These powers are subject: 
(1) To the provisions of this Act. 


(2) To all general laws applicable to the city 
and not inconsistent with this act ($8) and espe- 
cially to the Civil Service Law (§46). 


(3) To all provisions of general or special law 
regulating the granting of franchises, the lease or 
sale of city real estate, and the incurring of munici- 
pal indebtedness ($37). | . 

These provisions do largely increase the power of 
the council to control the machinery of the city 
government for exercising the existing powers and 
performing the existing duties of the city created 
by existing law but this enlarged control over the 
machinery of the government is granted without 
authorizing the council itself to enlarge or add to 
the city’s powers or to avoid the performance of 
any duty imposed on the city by law. That the act 
does not repeal or authorize the repeal of any gen- 
eral law of the State is further shown elsewhere 
herein. 

The proposition that authority to regulate the 
exercise of a power is not equivalent to authority 
to enlarge a power or add a new power, and the 
the performance of a duty is not authority to re- 
proposition that authority to transfer or regulate 


bey ¢ 
Point ITT. 


lieve from the performance of a duty, would 
seem so plain as not to require the citation of au- 
thority. The following cases may be of interest as 
illustrating the rule of construction here contended 
for: 

People vs. Morris, 18 Wend., 325, held that power 
granted by the charter of the village of Ogdens- 
burgh to the village trustees to “regulate and li- 
cense”’ grocers to Sell liquor to be consumed on the 
premises was subject to the limitations contained 
in a State law subsequently passed. 

People ex rel. Presmeyer vs. Commissioners of 
Police, 59 N. Y., 92, 95, 96, held that an act amend- 
ing the charter of the City of Brooklyn, which 
created a board of excise to have the powers and 
perform the duties of boards of commissioners of 
excise of the state, under the state law, operated to 
transfer to other officers the powers and duties 
created by the state law, but did not change the 
powers or duties themselves. 

In Matter of Zborowski, 68 N. Y., 88, 94, the 
Court held that a provision of a special act re- 
lating to the City of New York authorizing the 
common council “to regulate * * * the build- 
ing and repairing of sewers” did not authorize 
the council to cause sewers to be constructed, but 
only to regulate the manner of constructing them. 
See also 

Van Ingen vs. Hudson Realty Co., 106 
App. Div., 444, 446; 

Gibbs vs. Luther, 158 A. D., 951, affirming, 
81 Misc., 611; 

City of Geneva vs. Fenwick, 159 A. D., 
621; — 

Peace vs. McAdoo, 110 A. D., 18, 16. 


28 
Pornt ITI. 


The object of the optional city government law 
was to relieve cities, at their option, from the con- 
stant necessity of applying to the legislature for 
changes in the machinery of their local government 
by empowering the local legislative body to deal 
with all such matters directly. It substitutes for 
the hasty and ill-informed action of the legislature 
on such matters of purely local machinery the judg- 
ment of the representatives of the people of the 
city chosen by them for that purpose. The act 
thus enlarges the control of the city over the de- 
tails of its own government without changing the 
substance of any of the powers and duties imposed 
on the city by law. If there were any doubt as to 
this interpretation of the statute it should be re- 
solved in favor of such construction as will uphold 
its constitutionality. See infra. 


THIRD.—The theory of the courts 
below that the local administration 
of matters which are of State inter- 
est, such as health, police, etc., can- 
not be delegated to cities denies the 
essential and established character 
of cities as governmental subdivi- 
sions and agencies of the State. 


We believe we are quite within bounds in saying, 
as we have said above, that the proposition of the 
Courts below is “revolutionary.” The conception 
that the functions of local police, fire, health, char- 
ities and assessments cannot be awarded to local 
governments is contrary to the whole foundation 
and evolution of local governments in America. It 
denies the essential quality of local governments as 
being governmental in their very nature, and not 


29 
Pornt ITI. 


mere private corporations. They are subdivisions 
of the State, and not outside organizations dealing 
with it at arms length. They are the State’s agents 
for the local accomplishment of the State’s objects. 
To say, as the Courts below have said that any 
function which is a State object cannot be accom- 
plished through their agency is to misconceive their 
political quality altogether and set up a test under 
which they will become entirely impotent; for what 
local matter is not a State object? The State is 
only the sum of the localities which it contains. 
One of the most direct and forceful statements 
of this quality of cities as governmental agencies 
for local administration of matters of state interest 
(charities, for example) occurs in Maxmilian vs. 
Mayer, 62 N. Y., 160, 168, infra, as follows: 


“The territorial boundaries of the defendant 
are taken by the legislature acting as the 
organ of the sovereign power, and within them 
is created a department, and constituted a 
board of chief officers which, within those 
boundaries, is to have the power to use the 
public moneys of this political division of the 
State, for the due discharge of the duty of the 
State in this locality to the poor, the crazed, 
the wicked. It is a public duty laid upon the 
defendant, as a convenient mode of exercising 
a function of government, that it should, 
through its chief executive officer, from time 
to time appoint the chief officers of this de- 
partment and from time to time supply it with 
the means of performing its special public 
duties. These chief officers, though in a sence 
its officers, as having no power unless after 
appointment by it, and as mainly confined 


30 
Point ITI. 


within its territorial boundaries, are yet offi- 
cers of the State government, in the sense that 
they perform its function within a designated 
political division of the State. The defendant 
may not control them, save in strict accord- 
ance with the provisions of law.” 


From the multitude of other declarations of this 
Court, which have settled this governmental char- 
acter of the cities, created as agents of the State, 
for the very purpose of accomplishing locally these 
things which are of “State interest,” we invite at- 
tention to the following: 


People vs. Kerr, 27 N. Y., 188, 214: 


“The power which the municipal govern- 
ment holds and exercises in controlling and 
regulating the use of streets of New York has 
been delegated to it by the state. It is a grant 

‘of governmental power for local purposes, 
subject to the control of the supreme power in 
the state. The legislature may at any time 
resume the power delegated.” 


Darlington vs. Mayor, 31 N. Y., 164-193 (dealing 
with the liability of a city for injury done by a 
mob) : 


“City corporations are emanations of the 
Supreme law-making power of the state, and 
they are established for the more convenient 
government of the people within their limits.” 


People ex rel. City of Rochester vs. Briggs, 50 
N. Y., 558, 559: 


31 
Pornt ITI. 


“A municipal corporation is a part of the 
governmental machinery of the State, organ- 
ized not for the purpose of private gain, like 
private corporations, but for the purpose of ex- 
ercising certain functions of government, with- 
in a specified locality; and it possesses such 
powers, and such only, as are conferred upon 
it by the legislature; and they are to be exer- 
cised in such form, mode and manner, and by 
such agencies as the legislature may from time 
to time prescribe, within the limits of the con- 
stitution” (cited with approval People ex rel. 
Devery vs. Coler, 173 N. Y., 108, 110-1). 


The Court referred, by way of example, to “An 
Act to reorganize the government of the City of 
New York, which would involve all its varied gov- 
ernmental interests, executive, legislative and judi- 
cial, embracing extensive powers over life, liberty 
and property, as well as authorizing and regulating 
public obligations, duties, rights and_ responsi- 
bilities.” 

In Wells vs. Town of Salina, 119 N. Y., 280-295, 
the Court cites with approval from the opinion of 
Bradley, J., in Mayor vs. Ray, 19 Wallace, 468, 
475: 


“A municipal corporation is a subordinate 
branch of the domestic government of a state. 
It is instituted for public purposes only.” 


MacMullen vs. City of Middletown, 187 N. Y., 
37, 42: 


“These corporations are bodies politic; cre- 
ated by laws of the state for the purpose of 


32 
Point ILI. 


administering the affairs of the incorporated 
territory. They exercise powers of govern- 
ment, which are delegated to them by the leg- 
islature, and they are subjected to certain 
duties. They are the auxiliaries, or the con- _ 
venient instrumentalities, of the general goy- 
ernment of the state for the purpose of munic- 
ipalrule. * * * The whole interests are the 
exclusive domain of the government itself and 
the power of the legislature over them is su- 
preme and transcendent; except as restricted 
by the constitution of the state. Their char- 
ters being granted for the better government 
of the particular districts, the right to insert . 
such provisions as seem to best subserve the 
public interest would seem from the very na- 
ture of such institutions, to be inherent.” 


In People ex rel. Williams Engineering and Con- 
tracting Oo. vs. Metz, 193 N. Y., 148, 162, uphold- 
ing an eight-hour law for municipal contractors, 
the Court cited with approval the following from 
Atkin vs. Kansas, 191 U. 8., 207, 220: 


“Such [municipal] corporations are the 
creatures, mere political subdivisions of the 
state for the purpose of exercising a part of 
its powers. * * * What they lawfully do 
of a public character is done under the sanc- 
tion of the state. They are, in every essential 
sense, only auxiliaries of the state for the pur- 
poses of local government.” 


Scott vs. Village of Saratoga Springs, 199 N. Y., 
178, 181, 182, reiterates the holding in MacMullen 
vs. Oity of Middletown, supra, that 


54 
Point ITI. 


“A municipal corporation is a political, or 
governmental, agency of the state, which has 
been constituted for the local government of 
the territorial division described and which 
exercises, by delegation, a portion of the sov- 
ereign power for the public good.” 


People ex rel. Hon Yost vs. Becker, 203 N. Y., 
201, 205, 206, held that inasmuch as the Constitu- 
tion constitutes the counties, cities, towns and vil- 
lages of the State, the organs of government, the 
Legislature was without power to create other po- 
litical divisions. The Court, speaking of the at- 
tributes of a municipal corporation such as was at- 
tempted to be created, said: 


“It was a body politic and corporate, and, 
as such, the local recipient of administrative 
and judicial functions to be used as a part of 
the state government for the public good, by 
the exercise of which it became a participant 
in the government of the state.” 


The Court cites Barnes vs. District of Columbia, ° 
91 U. S., 540, 544, where the Court said: 


“A municipal corporation, in the exercise of 
all of its duties, including those most strictly 
local or internal, is but a department of the 
state. The legislature may give it all the 
powers such a being is capable of receiving, 
making it a miniature state within its local- 
ity. Again, it may strip it of every power, 
leaving it a corporation in name only; and it 
may create and recreate these changes as often 
as it chooses, or it may itself exercise directly 
within the locality any or all the powers usu- 


34 
Pornt ITI. 


ally committed to a municipality. We do not 
regard its acts as sometimes those of an agency 
of the state and at others those of @ munci- 
pality; but that, its character and nature re- 
maming at all times the same, it is great or 
small according as the legislature shall ea- 
tend. or contract the sphere of its action.” 


Harris vs. ‘People, 59-N. Y., 599, 601, holding 
that provisions creating a city court for Long 
Island City were within the title of an act to revise 
the charter of the city. 


“We think it plain that an act creating a 
municipality, and giving to~it the necessary 
legislative, taxing, judicial and police powers, 
embraces but one subject. Every municipality, 
to be of benefit to its citizens and to be efficient 
in its action, must have such powers to greater 
or less extent. Any act which sets out to erect 
a municipality must give to it these powers, 
or it is passed in vain. It follows, then, that 
the separate provisions of the act defining and 
granting these powers are but parts of a whole, 
and essential to make a whole.” 


In Fowle vs. Common Council of Alexandria, 3 
Pet., 398, 409, Chief Justice Marshall spoke of the 
City of Alexandria as “a municipal corporation, 
established for the general purposes of government, 
with limited legislative powers,” and as “a legis- 
lative corporation, established as a part of the gov- 
ernment of the country.” 

Of course it has long been thoroughly settled 
that the grant to municipalities of power to con- 
trol their own local affairs, falls entirely outside 


35 


PoINntT ITI. 


of the principle that the legislative power cannot 
be delegated. 


Clarke vs. City of Rochester, 28 N. Y., 
605, 634; 

Village of Saratoga Springs vs. Saratoga 
pruaeoe leis da 2) Co. AgioaN wy... 123, 
138; 

Stanton vs. Board of Supervisors, 191 N. 
Y., 428, 434, 435. 


FOURTH.—The proposition of the 
Court below is contrary to the estab- 
lished principle of recognizing and 
encouraging local home rule. 


In the next branch of this Point, we collect 
many authorities supporting Legislative grants of 
local control over the very subject matters dis- 
cussed by the Court below, but here we wish to 
point out that the Court’s opinion holding that no 
functions in which the State “has an interest,” 
including even police and health, can be delegated 
to the local governments, collides head-on with 
the whole principle of local home rule, which has 
been a characteristic feature of American munici- 
pal government from the beginning. In effect the 
Courts below have held that the Legislature is 
forbidden by the Constitution even to permit home 
rule. One would have thought this Court had ex- 
pressed itself often enough and with sufficient 
clearness on this point. 

Indeed there is much more ground for holding 
that the Legislature cannot refuse home rule. This 
is the purpose of the express “home rule” provi- 
sion of the Constitution (Article 10, Sec. 2) which 
requires local selection of all local officers. 


36 
Pornt ITT. 


For example, an effort of the Legislature to take 
away the local power of appointment of local 
police officers was held unconstitutional in People 
ex rel. Bolton vs. Albertson, 55 N. Y., 50, 56, 57, 
where the Court said: 


“The purpose and object of Section 2 of 
Article 10 of the Constitution, as is very ob- 
vious, was to secure to the several recognized 
civil and political divisions of the state the 
right of local self-government, by requiring 
that all county, city, town and village officers 
* * * should be elected by the electors of the 
respective municipalities, or appointed by such 
authorities thereof as the Legislature should 
designate ~*~ * * , 

This right of self-government lies at the 
foundation of our institutions, and cannot be 
disturbed or interfered with, even in respect 
to the smallest of the divisions into which the 
State is divided for governmental purposes; 
without weakening the entire foundation; and 
hence it is a right not only to be carefully 
guarded by every department of the govern- 
ment, but every infraction or evasion of it to 
be promptly met and condemmed; especially 
by the Courts, when such acts become the sub- 
ject of judicial investigation.” 


In this case the Court adopted the reasoning of 
the dissenting opinion of Brown, J., in People vs.: 
Draper, 15 N. Y., 682, in which the historic prin- 
ciple of home rule is expounded. 

Rathbone vs. Wirth, 150 N. Y., 459, was another 
case holding a Legislative act wnconstitutional be- 
‘cause it provided for appointment of police com- 


SE 
Pornt ITI. 


missioners by other than local authority; and in 
this case this Court pointed out the general princi- 
ple of home rule as follows: 


“Tt is, of course, evident that the provision 
authorizes the Legislature to confer the power 
of appointment upon any local authority; but 
that the power, which is to be thus conferred, 
may be qualified, or hampered in its exercise 
by the Legislature, is not only not evident, 
but such a proposition, in my _ opinion, 
threatens what we are bound to regard as a 
cardinal principle of our form of government. 
I refer to the right of local self-government, a 
right which inheres in a republican govern- 
ment and with reference to which our con- 
stitution was framed. 

“The habit of local self government is some- 
thing which we took over, or rather, continued 
from the English system of government and, 
as Judge Cooley has remarked with reference 
to the constitutions of the states, “if not ex- 
pressly recognized, it is still to be understood 
that all these instruments are framed with its 
present existence and undisputed continuance 
in view.’ It means that in the local, or 
political, subdivisions of the state, the people 
of the locality shall administer their own local 
affairs, to the extent that that right is not 
restricted by some constitutional provision” 
(opinion of Gray, J., page 467). 


And at page 487, O’Brien, J., reaffirmed the 
ruling in the Albertson case, supra, that the pro- 
vision in question 


38 
Pornt III. 


“was designed to protect and give force and 
effect to the principle of local self-government 
which has always been regarded as funda- 
mental in our political institutions, and to be. 
the very essence of every republican form of 
government. The local government, even in 
the smallest division of the state, is the pre- 
paratory school in which the citizen acquires 
the rudiments of self-government, and hence 
these institutions have been justly regarded as 
the nurseries of civil liberty.” 


In the opinion below (6 A. D., 277, 290-297) 
which was also expressly approved by the opinion 
of this Court (page 466, see also Scott vs. Saratoga 
Springs, 199. N. Y., 178, 18), the general con- 
stitutional policy of home rule was forcefully 
stated as follows: 


“The future success or failure of our present 
form of government will depend largely upon 
the capacity of the inhabitants of cities for self- 
government. * * * Any departure from the 
principles of local self-government for the pur- 
pose of remedying temporarily, real or fancied 
grievances or evils, is both a confession of in-- 
capacity on the part of the people to govern - 
themselves, and a means of creating such in- 
capacity, and is sure, sooner or later, to cause 
greater evils than those sought to be remedied 
by such departure.” 


And in the same case the Court below adopted 
the following statement from Black’s Constitu- 
tional Law: 


39 
Point IIT. 


“The continued and permanent existence of 
local government is, therefore, assumed in all 
the state constitutions, and is a matter of 
constitutional right, even when not in terms 
expressly provided for. It would not be com- 
petent to dispense with it by statute.” 6 
App. Div., 277, 290. 


We submit that the decision below that the Legis- 
lature, because of some supposed implied prohibi- 
tion, cannot grant home rule on the subject of police 
is directly in the teeth of these decisions of this 
Court under Article X, section 2 of the Constitu- 
tion. 

The spirit of the Constitution as supporting, 
rather than controverting, home rule is further 
illustrated by the express provisions which prohibit 
legislative interference with the municipal proper- 
ty, and the passage of special laws without the con- 
sent of the Mayor of the City Council. 

In the following cases, these express clauses have 
been discussed by this Court in a way which seems 
to us to throw light on the general question. 

In People ex rel. R. R. Co. vs. Batchellor, 53 N. 
Y., 128, the Court held void a mandatory act com- 
pelling a town to subscribe for stock in a railroad, 
on the ground that the legislature could no more 
require the town to enter into a private contract 
than it could an individual; and in Brownell vs. 
Town of Greenwich, 114 N. Y., 518, 532, the rail- 
road aid act of 1869, authorizing towns, upon a tax- 
payers’ vote, to bond themselves in aid of railroads, 
was upheld, distinguishing the Batchellor case, on 
the ground that what the legislature could not 
compel a municipal corporation to do, it could em- 
power it to do at its discretion. 


40 
Point ITI. 


In People ex rel. Rodgers vs. Coler, 166 N. Y., 
1, 12, 13, 19, 20, the court held invalid an act re- 
quiring the city to withhold payments from con- 
tractors unless the latter paid the prevailing rate 
of wages, on the ground, among others, that it re- 
quired the expenditure of city moneys for other 
than a city purpose. The Court said: 


“The city exists under its ancient charters 
as modified or enlarged by modern enactments 
for the purpose of local self government. 
While the rights and powers so conferred upon 
the city are subject to change or modification 
by the supreme power of the state they cannot 
be wholly destroyed. It is not true that the 
internal affairs of cities in this state are abso- 
lutely subject to the will of the legislature. 
The constitution recognizes their existence as 
political and corporate bodies and has im- 
posed various restrictions upon the powers of 
the legislature to interfere in matters of local 
government. It is without power to appoint 
city officers, though it may provide for their 
election by the local electors, or their appoint- 
ment by some local authority. It cannot dis- 
pose of the property of the muncipality, nor 
disburse its revenues, however acquired, for 
any purpose not pertaining to local admin- 
istration or local government. 

“The recent amendment to the constitution, 
which confers upon the mayor in the larger 
cities and the mayor and governing body in 
the others the right to interpose what may be 
called a qualified veto upon acts of the state 
legislature relating to their local affairs, plain- 
ly implies that cities possess a certain kind of 


~ 


41 
Point ITI. 


political autonomy which, however limited, 
the legislature may not invade or destroy at 
pleasure. (1 Dillon on Munic. Corp., §$71-74.) 
It may regulate but cannot destroy powers 
recognized by the Constitution as inherent in 
the cities of the state.” 

“The compulsory authority of the legisla- 
ture over municipal corporations in regard to 
matters of general concern and duties which 
the people of the several localities owe to the 
state at large is not questioned. Legislative 
control in matters political and governmental 
is complete. But while such corporations are 
made use of in state governments, and in that 
character subject to state control, they have 
other objects and purposes peculiarly local, in 
which the state at large, except in conferring 
the power and regulating its exercise, is legal- 
ly no more concerned than it is in the indi- 
vidual and private concerns of its several citi- 
zens, and it is from the standpoint not of state 
interest but of local interest that the necessity 
of incorporating cities and villages most. dis- 
stinctly appears. With respect to property 
and contract rights of exclusively local con- 
cern, the state has no right to mterfere and 
control by compulsory legislation the action 
of municipal corporations.” 


The care with which these safeguards have been 
imposed against legislative interference with home 
rule is a most persuasive evidence that the Consti- 
tution never intended to prohibit the legislature 
from permitting home rule in other respects; and 
so this Court itself explained the purpose of Article 
X, section 2, as follows, in People ex rel. Metro- 


42 
Point ITI. 


politan Street Railway Co. vs. Tax Commissioners, 
174 N. Y., 417, 484, 435: 


“These and other commands of the different 
constitutions, when read in the light of prior 
and contemporaneous history, show that the 
object of the people in enacting them was to 
prevent centralization of power in the state 
and to continue, preserve and expand local 
self-government. * * * The legislature has 
the power to regulate, increase or diminish 
the duties of the local officer, but it has been 
steadfastly held that this power is subject to 
the limitation that no essential or exclusive 
function belonging to the office can be trans- 
ferred to an officer appointed by central au- 
thority. * * * It is interference, whether di- 
rect or indirect, with the vital, intrinsic and 
inseparable functions of the office as thus de- 
fined and understood that the constitution 
prohibits.” 


In this connection, we also invite the attention 
of the Court to the following other cases in which 
principle of home rule has been recognized, not as 
hostile to the Constitution, as the court below has 
held, but as in accord with it and a policy to be 
encouraged. 

People vs. Morris, 18 Wend., 324-334, adopting 
the statement from Cuddon vs. Eastwick, 1 Salk. 
193, ‘a public corporation is also defined to be ‘an 
investment of the people of a place with the local 
government thereof.’ This latter description is the 
most appropriate, and is justified by the history 
of these institutions, and the nature of the powers 
with which they were and are invested.” 


43 
Pornt ITI. 


In Mills vs. Sweeney, 219 N. Y., 213, Pound, J., 
Says at page 221, “The legislative policy favors full 
power to cities in their local affairs.” 

In Barhite vs. Home Telephone Company, 50 
A. D., 25, 28, 29, the court approved the grant of 
legislative authority as found in the Charter of 
the City of Rochester “because that delegation is 
deemed wise and practical on the assumption that 
the citizens of the municipality and its officers can 
better legislate for its inhabitants than the State 
Legislature. It is in furtherance of home rule, and 
is a normal product of the principle of self- 
government.” 

People ex rel. Lavier vs. Hessler, 152 A. D., 
839, 842 (Fourth Department) : 


“The trend of modern legislation is toward 
vesting in each municipality the management 
of its local affairs. Responsibility can then 
be brought home to the body charged with the 
performance of any specific duty, and the mem- 
bers will probably be known to the people of 
the city.” 


This right of local self-government does not rise 
from or depend upon any express grant of power in 
the constitution, analogous to the power granted 
to confer upon boards of supervisors of counties 
powers of local legislation and administration, but 
antedates the constitution and is implied in its 
terms. Bank of Chenango vs. Brown, 26 N. Y., 
467, 469, 470. 

This was well expressed in Village of Carthage 
vs. Frederick, 122 N. Y., 268, 273, discussing this 
general subject with especial reference to the police 
power: 


44 
Pornt ITI. 


“It is made the duty of the legislature by the 
Constitution now in force, to provide for the 
organization of cities and villages, but, as a 
recent writer has said: “The right of the legis- 
lature, in the entire absence of authorization 
or prohibition, to create towns and other in- 
ferior municipal organizations and to confer 
upon them the powers of local government, and 
especially of local taxation and police regula- 
tion usual with such corporations, would al- 
ways pass unchallenged.’ (Cooley on Const. 
Lim. [5th ed.], 228). During the early history 
of the state, when the constitution was silent 
upon the subject, cities and villages were in- 
corporated by the legislature, and extensive 
powers of local legislation were conferred up- 
on them, including the right to pass by-laws or 
ordinances, to inflict fines and penalties for 
their violation and to collect the same through 
the courts. (Laws of 1785, chap. 83; Laws of 
1790, chap. 49; Laws of 1794, chap. 36.) As 
early as 1785, by the charter of the city of 
Hudson, the right to legislate in regard to the 
‘police’ power was expressly conferred. (Laws 
of 1785, chap. 83, Sec. 11.) This power was 
then well known to the common law, and, 
twenty years before, had been defined by Black- 
stone as ‘the due regulation and domestic 
order of the Kingdom, whereby the individuals 
of the state, like members of a well-governed 
family, are bound to conform their general 
behavior to the rules of propriety, good neigh- 
borhood and good manners and to be decent, 
industrious and inoffensive in their respec- 
tive stations’ (4 Black. Comm., 162). Munici- 
pal corporations have exercised this power, eo 


45 
Pornt ITT. 


nomine, for time out of mind, by making 
regulations to preserve order, to promote free- 
dom of communication and to facilitate the 
transaction of business in crowded communi- 
ties. Compensation has never been a condition 
of its exercise, even when attended with in- 
convenience or pecuniary loss, as each member 
of a community is presumed to be benefited by 
that which promotes the general welfare. All 
authorities agree that the Constitution. pre- 
supposes the existence of the police power and 
is to be construed with reference to that fact. 
(2 Hare’s Am. Const. Law, 766; Anderson’s 
.Law Dict. title ‘Police.’)” 


People ex rel. Met. St. Rlwy. Co. vs. Board of 
Tax. Commrs., 174 N. Y., 417, 431, 484—+treats of 
the history of the principle, as do also 

People ex rel. Hon Yost vs. Becker, 203 N. Y., 
201, 205 ff., and 

People ex rel. Town of Pelham vs. Village of 
Pelham, 215 N. Y., 874, 380 ff. 


FIFTH.—The specific, precise func- 
tions held by the courts below to be 
not susceptible of local control (i. e., 
assessments, public safety, health, 
charity, and plumbers’ licenses) 
have been held by this Court to be 
valid subjects for such local control. 


In view of the above basic principles which 
establish the error of the Courts below, and in 
view of the uniform history of the State, it seems 
hardly necessary to argue the precise proposition 
that cities can constitutionally be allowed to con- 


46 
Point IIL. 


trol local assessments, police, health, charity and 
plumbers, but this is what has been actually 
held by the courts below, and we therefore, will col- 
lect some of the cases dealing directly with pre- 
cisely such delegations. 

Of course, we do not contest the proposition, that 
these subjects are matters of state interest. That 
is perfectly clear and thoroughly settled. What 
we do contest is the proposition that their local 
administration cannot be left to the cities. We 
should have thought the contrary so overwhelm- 
ingly established that no one would have disputed 
it. 


As to the functions of the assessors. 


The power to delegate these functions has been 
upheld in the following cases: 

Clarke vs. City of Rochester, 28 N. Y., 605, 634, 
upheld an act authorizing, subject to referendum, 
the City of Rochester to subscribe for railroad 
stock, to issue bonds therefor and to raise, by taxa- 
tion, the money to pay the interest on the bonds. 
The Court says that the section of the constitution 
which makes it the duty of the legislature to pro- 
vide for the organization of cities and to restrict 
their power of taxation, etc., 


“contains an irresistible implication that the 
authority to lay local taxes and to borrow 
money for local objects may be constitutionally 
committed to local boards or councils within 
the cities or villages. * * * I do not say 
that it can be submitted to the electors of a 


47 
Point ITI. 


city or village to determine what powers its 
local legislature shall possess, but only that 
these bodies shall be made the depositories of 
such powers of local government as the legis- 
lature shall see fit to prescribe, and the ex- 
ercise of which is not repugnant to any of the 
general arrangements of the constitution.” 


People vs. Raymond, 37 N. Y., 428, 480, holds 
that the office of commissioner of taxes in the City 
of New York is a local office, which cannot consti 
tutionally be filled by appointment by the Governor, 
notwithstanding their function was to assess prop- 
erty for taxation for state as well as local purposes. 

Matter of Zborowski, 68 N. Y., 88, 96, 97, in- 
volved the question what officials in the City of 
New York had authority to cause sewers to be con- 
structed and the power of the legislature to delegate 
that power, together with the concomitant power 
to levy assessments, was challenged on the ground 
that it involved a delegation of the power to tax. 
The Court held: 


“It is contended that the power to tax may 
not lawfully be delegated by the legislature. 
This we do not concede in that broad state- 
ment. The legislature may delegate to a muni- 
cipality the power to tax for the expenses of 
the local government, and the power to assess 
for the expenses of local improvements. All 
the powers of local government are delegated. 
In the case at hand, the power of assessment 
is delegated to the corporate body, the mayor, 
alderman and commonalty of the City of New 
York, and it may lawfully be exercised through 
the officers of the corporation, if the terms of 


48 
PoInt ITI. 


the legislature delegation so provides. The 
whole system of government of the North 
American States is upon this principle. All 
through the political arrangement of counties, 
cities, towns and villages, and even school dis- 
tricts, local affairs, including the power of 
taxation, are put into the hands of local 
officers, some of whom, as a single officer, or as 
boards of officers, determine upon and author- 
ize that which in the end brings upon the own- 
ers of property the burden of taxation; and 
others of whom, singly or as boards, fix the 
amount of that burden which will be laid up- 
on each owner.” 


Genet vs. City of Brooklyn, 99 N. Y., 296, 307, 
upheld the power of the legislature to delegate 
to the commissioners of Prospect Park, Brooklyn, 
power to fix an area of assessment and to impose 
the cost of widening certain streets within that 
area. The Court said: 


“The legislature may itself fix a district of 
assessment, or the power may be delegated by 
the supreme legislative body to the authorities 
of subordinate political and municipal di- 
visions, or other official agencies, as may also 
the incidents of the power, such as the appor- 
tionment and distribution of the tax, as be- 
tween the persons and property upon which 
it is laid. The learned counsel for the inter- 
venors is compelled to admit that the legisla- 
ture may distribute the burden of public im- 
provements on its own notions of policy, its 
own sense of justice, and.its own assumptions 
of benefit.” 


49 
Point ITI. 


Terrell vs. Wheeler, 123 N. Y., 76, 82, 838, up- 
held the power of the legislature to delegate to 
the board of assessors of the City of Brooklyn dis- 
cretionary power to reduce taxes or assessments 
in arrears: 


“Could the legislature devolve upon the 
board of assessors the jurisdiction specified in 
the section? Why not? It was a local board 
—one of the departments of the city govern- 
ment charged by the city charter with the gen- 
eral duty of making assessments for the pur- 
pose of taxation. Its members represented the 
city and the people of the locality, and it was 
the appropriate tribunal for the exercise of the 
jurisdiction conferred. * * * 

It was not necessary for the legislature to 
fix the amount of the impositions. Such legis- 
lation is not unusual in principle.” 


Followed Lamb vs. Connolly, 122 N. Y:, 
531, 535. 


People ex rel. Town of Pelham vs. Village of 
Pelham, 215 N. Y., 374, held invalid an act trans- 
ferring the powers of village assessors to town 
ASSESSOTS. 


2. 
As to the functions of Public Safety. 


In People ex rel. Bolten vs. Albertson, 55 N. Y., 
50 the Court went to the extent of holding the 
Rensselaer police district act unconstitutional, be- 
cause it attempted to deprive the people of Troy of 
the control of their own police. 


50 


Point ITI. 


The earlier case of People vs. Draper had upheld 
the Metropolitan Police District Act solely on the 
ground that its operation extended beyond the ter- 
ritorial limits of the city: 


“All these officials were, I have no doubt, 
public officers; and they were, moreover, city 
officers within the meaning of the constitution. 
The superintendent. of police, captains, ser- 
geants and patrolmen, mentioned in the metro- 
politan police bill, are officials of the same 
character, possessing substantially the same 
powers and authorized to exercise the same 
functions as those heretofore existing under 
somewhat different names; and if appointed 
for the City of New York, unconnected with 
the other territory annexed to-it by this act, 
they should have been elected by the electors 
of the city, or of some division of it, or ap- 
pointed by some authority of the city. The 
police commissioners, assuming that they were 
themselves constitutionally appointed, cannot 
be regarded as authorities of the city within 
meaning of the constitution. Hence it follows 
that if the provisions of the statute had been 
limited territorially to the City of New York, 
it would have been in conflict with the section 
of the constitution so often referred to.” 


People ex rel. Dunn vs. Ham, 166 N. Y., 477, 480, 
481, sustained a city ordinance abolishing the 
statutory position of station house keeper in the 
police force of the City of Albany, under a statutory 
delegation of power substantially as broad as the 
one here involved. 


51 
Pornt ITI. 


People ex rel. Devery vs. Coler, 173 N. Y., 103 
107, held that the provisions for the reorganization 
of the police force of the City of New York came 
within the title of the Greater New York Charter 
because coming under the “single subject, the gov- 
ernment of the City of New York.” 

People ex rel. Werner vs. Prendergast, 206 N. Y., 
405, 409: 


“The police department and the department 
of education and health in any city are en- 
gaged in the discharge of duties which very vi- 
tally affect the general public, and yet it 
would be opposed to widespread and well set- 
tled opinion to hold that the members of such 
departments are state officials in the sense of 
being engaged in its service.” 


oe 
As to the Health Functions. 


Though unquestionably a State function, dele- 
gation of local powers to local officials is held with- 
in the powers of the Legislature. 

Metropolitan Board of Health vs. Heister, 37 N. 
Y., 661, 666, 670, upheld the Metropolitan sanitary 
district act on the authority of the Draper case: 


“As early as 1796, and by repeated statutes, 
from that time down to the adoption of the 
Revised Statutes, in 1830, the duty of attend- 
ing to the health of the city, to cases of infec- 
tious diseases, to vessels from unhealthy ports, 
to establishing and regulating slaughter- 
houses, has been given to, and exercised by, the 


a 


Pornt ITI. 


mayor of the City of New York, the mayor, 
aldermen and commonalty thereof, commis- 
Sioners of health, health wardens for the city, 
or some other local officers of that city (3 
Greenl. ed. Laws, ch. 38, page 305; 1 R. L, 
1813; Laws 1850, ch. 275). 

If the act of 1866 (ch. 74), which we are con- 
sidering, was an act for the regulation of these 
subjects, in the city and county of New York 
alone, it would be difficult to sustain it, under 
the decisions of this Court. 

* * *% % % * *% * 

Scarcely a year passes, or did pass prior to 
1846, in which the legislature did not charter 
some city or village, and give to the local 
powers, full authority, by their own action and 
in their own way, to regulate, abate or remove 
all trades or manufactures that might be by 
them deemed injurious to the public health. 
I have examined the statutes from 1832 on- 
ward, and find that scarcely a year passed by 
in which these powers were not given to many 
cities or villages by original authority or by 
amendments to their charters.” 


Followed Health Department vs. Knoll, 70 N. Y., 


530, 536, upholding an ordinance of the Board of 
Health of the City of New York under the city 
charter of 1878, which transferred to it the powers 
formerly vested in the Metropolitan Board of 
Health. 


Polinsky vs. People, 73 N. Y., 65, 69, 70, upheld 


an ordinance prohibiting the sale of adulterated 
milk: 


“That the legislature in the exercise of its 
constitutional authority may lawfully confer 


53 
Pornt III. 


on boards of health the power to enact sanitary 
ordinances, having the force of law within the 
districts over which their jurisdiction extends, 
is not an open question. This power has been 
repeatedly recognized and confirmed.” 


Followed People ex rel. Lieberman vs. Vandecarr, 
175 N. Y., 440, 444, upholding an ordinance for- 
bidding the sale of milk without a permit. 

People ex rel. Bush vs. Houghton, 182 N. Y., 301, 
306, 307, holding unconstitutional an act author- 
izing the county judge to fill vacancies in the Board 
of Health of the City of Oswego: 


“They are subserving the general public in- 
terest in promoting and maintaining sanitary 
conditions in the locality; but they, equally, 
execute a corporate purpose of the municipal 
government; which, if it is not to be implied, 
is actually made a part of its charter by the 
laws. They are to be appointed under the 
statute, primarily, by the governing municipal 
authorities and the performance of their duties 
is confined territorially to the city. It seems 
to me that the situation was such as the Peo- 
ple intended to be met, when establishing in 
the fundamental law of the state the principle 
of ‘home rule’ for its political subdivisions. 
The appointment of the complainants by the 
county judge of the county was, of course, not 
an appointment by a municipal authority and 
it cannot be justified, unless the appointees 
are to be regarded as public officers, whose 
offices constitute no part of the city govern- 
ment. That they can be so viewed and that 
their appointment could validly be shifted 


54 
Pornt ITI. 


from the mayor and common council of the 
city, in the event of unfilled vacancies in. the 
board, upon a county officer I do not believe. 
Whatever doubt there might be with respect 
to a member of the board of health of the city 
being a city officer ought to disappear, when 
we notice the provisions of the charter of the 
city. 
* * * 4 *% % *% % w 
If a member of the board of health could not 
be regarded elsewhere in the state as a city 
officer, the legislature, which enacted the Pub- 
lic Health Law, under which his office is ere- 
ated, has, certainly, made him a city officer in 
the city of Oswego.” 


(And see People ex rel. Werner vs. Prendergast, 
206 N. Y., 405, 409, supra. ) 


Crayton vs. Larabee, 220 N. Y., 493, 502, sustain- 
ing the acts of a health officer authorized by ordi- 
nance adopted by the City of Syracuse under the 
power delegated by the Second Class Cities Law: 


“Among all the objects to be secured by goy- 
ernmental Jaws none is more important than 
the preservation of the public health. As a 
potent aid to its achievement the state creates 
or authorizes the creation of local boards of 
health or health officers. * * * The powers 
in fact conferred upon them by the legislature 
or by virtue of legislative authority, in view of 
the great public interest entrusted to them, 
have always received from the courts a liberal 
construction.” 


55 
Pornt ITI. 


Matter of Board of Health, 43 App. Div., 236, 
heid that a member of a village board of health is 
a village officer, whose oath of office must be filed 
with the village clerk: 


“While a board of health enforces state 
laws, it does so only within the political sub- 
division of the state for which it is appointed.” 


Followed Matter of Towne vs. Porter, 128 App. 
Diy., 717, 721, holding unconstitutional an act em- 
powering the state commissioner of health to ap- 
point the health officer of a village on nomination 
of the local board of health. 

Hellyer vs. Prendergast, 176 App. Div., 383 up- 
held a local ordinance prescribing qualifications 
for employees under the board of health. 

The foregoing authorities hold also that the reg- 
wlation of health is a matter generally speaking of 
state concern. On the relation between the state 
power and the power delegated to municipalities, 
the recent decision in People ex rel. Knoblauch vs. 
Warden, 216 N. Y., 154, 157, 160, 161, is especially 
pertinent. It holds that a delegation of power to 
a city to regulate matters of state concern must be 
considered as being subject and subordinate to the 
general laws of the State on the subject so that a 
regulation of the city board of health within its 
statutory power takes precedence over a_ local 
ordinance on the same subject. In other words, 
the Court upholds the very rule of construction for 
which we are here contending: 


“A statement of the sections of the charter, 
necessarily brief and epitomized, enforce two 
conclusions; the one, that the legislature em- 


56 
Pornt ITI. 


powered the board of health to enact and en- 
force regulations and ordinances, in order that 
the public health and comfort should be pro- 
tected and promoted, in relation to very many 
subjects and matters over which the board of 
aldermen or other municipal body are given by 
the charter regulative power and control; the 
other, that the lawful regulations, ordinances 
and orders of the board of health are superior 
and paramount. 
* * * % * * * 
The legislature did not intend or contem- 
plate a conflicting authority or administration. 
Authority to the board of aldermen to con- 
struct, maintain or regulate in a certain re- 
spect or matter was not intended to and did 
not bar the board of health from interfering 
with or exercising its power as the authorized 
conservator of the public health in regard to 
i 


4. 


As to the function of charities: 

Maamilian vs. Mayor, 62 N. Y., 160, 168, held 
the City of New York not liable for the negligence 
of an ambulance driver employed by the commis- 
sioners of charities and corrections appointed by 
the mayor, because, while being local-officers, they 
were exercising government functions. The pas- 
sage of the opinion in which the Court discusses 
fully the power of the Legislature to entrust the 
governmental interest of our local charities to the 
local authorities is quoted in full swpra, at page 


29. 


57 
Pornt ITI. 


5. 


As to the function of examining plumbers. 

People ex rel. Nechamcus vs. Warden, 144 N. Y., 
529, sustaining act establishing examining board of 
plumbers in cities. 

People ex rel. Lavier vs. Hessler, 152 App. Div., 
839. 842 (Fourth Department), holding that a 
plumber must be licensed by the local examining 
board and that a certificate of the board of another 
city is not sufficient. 


“The trend of modern legislation is toward 
vesting in each municipality the management 
of its local affairs. Responsibility can then be 
brought home to the body charged with the 
performance of any specific duty, and the mem- 
bers will probably be known to the people of 
the city. The endowment of an examining 
board of a city with the authority and duty to 
determine as to the competency of one seeking 
to act as employing or master plumber is an 
advanced instance of this tendency of our Leg- 
islature and the legality of the act has been 
sustained.” 


See, also, as to licensing other occupations: (City 
of Brooklyn vs. Breslin, 57 N. Y., 591; People ex 
rel. Larrabee vs. Mulholland, 82 N. Y., 324, 326; 
Village of Stamford vs. Fisher, 140 N. Y., 187. 


The above cases are cited here because they up- 
hold explicitly the power to delegate to local au- 
thority to control the local administration of the 
precise functions which have been held below not 
capable of such delegation. 


58 
PoInt ITI. 


We refrain from burdening the Court with dis- 
cussion of a great multitude of cases to the same 
effect, but relating to other particular functions of 
similar “State interest,” and content ourselves with 
a mere reference to some of the decisions dealing 
with the following subjects: 

Elections—( People ex rel. Werner vs. Prender- 
gast, 206 N. Y., 405, 408-11). 

Streets— (Village of Carthage vs. Frederick, 122 
N. Y., 268; People ex rel. Collins vs. Ahearn, 193 
N. Y., 441; City of Buffalo vs. Stevenson, 207 N. Y., 
258, 263; McCabe vs. City of New York, 213 N. Y., 
468, 484; Appleton vs. City of New York, 219 N. Y., 
150, 168). 

Franchises— (Matter of Gilbert Elevated Rail- 
way Co., 70 N. Y., 861, 374, 875; Kittinger vs. Buf- 
falo Traction Co., 160 N. Y., 377, 392; Wilhs vs. 
City of Rochester, 219 N. Y., 427, 483, 434). 

Excise—( Village of Gloversville vs. Howell, 70 
N. Y., 287, 290, 291; People ex rel. Haughton vs. 
Andrews, 104 N. Y., 570. 

Administration of Justice—(Devoy vs. Mayor, 
36 N. Y., 449, 450; People ex rel. Fowler & Bull, 46 
N. Y., 57; Harris vs. People, 59 N. Y., 599, 601; 
People ex rel. Taylor vs. Dunlap, 66 N. Y., 162, 167, 
168). 

General Police Power—( Presbyterian Church vs. 
Mayor, 5 Cow., 538, 540; Mayor vs. Williams, 15 
N. Y., 502, 504, 505; People ex rel. Bolton vs. Al- 
bertson, 55 N. Y., 50, 68; Village of Carthage vs. 
Frederick, 122 N. Y., 268, 274; Oity of Rochester 
vs. West, 164 N. Y., 510, 513, 514; Fifth Ave. Coach 
Co. vs. City of New York, 194 N. Y., 19, 29; City of 
Rochester vs. Macauley-Fien M .Co., 199 N. Y., 
207, 210, 211; People vs. Kaye, 212 N. Y., 407, 
416). 





= 


59 
Point ITI. 


SIXTH.—To what extent control 
over the exercise within their re- 
spective localities of these important 
State functions or of any other mat- 
ter in which the city acts as agent 
for the State shall be delegated to 
cities, rests entirely in the discretion 
of the Legislature, and that discre- 
tion cannot be reviewed by the 
courts. 


As we state in Point II. of this brief, it seems 
to us that the real issue between the Courts below 
and the Legislature is on questions of political 
expediency—how far is Home Rule expedient, and 
how far should direct, clear responsibility be en- 
couraged in municipal governments as against 
complicated counter checks and obscure responsi- 
bility. 

We need not repeat here our argument that such 
questions are not for the Courts, but there are 
a number of cases decided by this Court which bear 
directly on the Legislative power to determine for 
itself to what extent the functions in which the 
state is “interested” shall be administered by the 
local governments and to what extent by the 
central government. 

In People vs. Draper, 15 N. Y., 532, 545, supra, 
the Court said that “it belongs to the legislature 
to arrange and distribute the administrative func- 
tions, committing such portions as it may deem 
suitable, to local jurisdictions and retaining other 
portions to be exercised by officers appointed by 
the central power, and changing the arrangement 
from time to time, as convenience, the efficiency 
of administration and the public good may seem 


60 
Pornt ITI. 


to require. If a particular act of legislation does 
not conflict with any of the limitations or re- 
straints which have been referred to, it is not in 
the power of the courts to arrest its execution, 
however unwise its provisions may be, or whatever 
the limitations may have been which led to its 
enactment.” 

Clarke vs. City of Rochester, 28 N. Y., 605, 634: 


“T do not say that it can be submitted to 
the electors of a city or village to determine 
what powers its local legislature shall pos- 
sess, but only that these bodies may be made 
the depositories of such powers of local govern- 
ment as the legislature may see fit to prescribe, 
and the exercise of which is not repugnant to 
any of the general arrangements of the con- 
stitution.” 


People vs. Pinckney, 32 N. Y., 877, 393: 


“The power of the legislature of the state 
is supreme over that of all local legislatures, 
except when the constitution intervenes to 
restrict it. * * * The legislature may re- 
call to itself and exercise at its pleasure, so 
much of the powers it has conferred upon the 
city corporation as are not secured to it by 
the constitution. This necessarily results 
from the fact that all the legislative power of 
the people is granted to the legislature, except 
such as is expressly reserved.” 


People vs. Shepard, 36 N. Y., 285, 286: 


“The legislature has authority to arrange 
the distribution of these powers as the public 


61 
Point ITT. 


exigencies may require; apportioning them to 
local jurisdictions, to such extent as the law- 
making power deems appropriate, and com- 
mitting the exercise of the residue to officers 
appointed as it may see fit to ordain.” 


Metropolitan Board of Health vs. Heister, 37 
N-Y., 661, 672: 


“That *the legislature possess the entire 
control over the streets of the City of New 
York, and that it can delegate such portions 
of its authority to the local organizations, and 
in such measure, form and under such restric- 
tions as it thinks proper, has been frequently 
decided.” 


City of Brooklyn vs. Breslin, 57 N. Y., 591, 596: 


<* * * the wisdom and expediency of 
granting such power (licensing) were within 
the legislative power of the state government 
to decide.” 


People ex rel. Taylor vs. Dunlap, 66 N. Y., 162, 
168: 

“Tt is for the legislature to distribute the 
powers of local governments, as it may deem 
best, and this discretion, when not restrained 
or excluded by some provision of the constitu- 
tion, is absolute, and no such provision, ap- 
plicable to the matter under consideration, 
exists.” 


Matter of Allison vs. Welde, 172 N. Y., 421, 428: 


“We think * * * that the legislature 
has the right to distribute the powers of local 


62 


Point IIT. \ 


government, as between the city and county 
governments, as it may deem best; and that 
there is no provision of the constitution which 
limits the power of the legislature in this 
regard.” 


In MacMullen vs. City of Middletown, 187 N. 
Y., 37-41, the Court cites with approval Meriwether 
vs. Garrett, 102 U. S:, 472, 511, where Field, J., 
said: 

“Municipal corporations are mere instru- 
mentalities of the state for the more conven- 
ient administration of local government. 
Their powers are such as the legislature may 
confer, and these may be enlarged, abridged or 
entirely withdrawn at its pleasure.” 


Townsend vs. Mayor, 16 Hun, 362, 364; affirmed 
TT N. Y., 542. 

And see the passage cited above from the opin- 
ion in Barnes vs. District of Columbia, 91 U. S., 
440, approved as supra, People ex. rel. Hon Yost 
vs. Becker, 203 N. Y., 201, 205. 


A contrary rule would cripple the power of the 
legislature rather than strengthen it, and would 
tend to break down our entire existing and tradi- 
tional system of government whereby the distribu- 
tion of powers as between the state and the local- 
ities rests entirely in the legislature subject only 
to the limitations contained in the constitution 
itself. 


a a 


63 
POINT IV. 


The Court below also erred in hold- 
ing that the Act violated Article III, 
Section 1 of the Constitution by the 
provisions relative to repeal. 


The court below conceded, as follows, the power 
of the Legislature to authorize the local govern- 
ment to “supersede” or “repeal” even legislative 
acts, so long as the subject matter is a local one: 


“Tt is undoubtedly true that so far as local 
matters are concerned, which only affect the 
municipality, the Legislature may provide that, 
upon the adoption of local ordinances, charter 
provisions upon the subject shall be deemed 
to be repealed. There have been several adju- 
dications to that effect. 


Matter of City of New York (Morris The- 
atrical License), 131 App. Div., 767; 
City of New York vs. Alhambra Theatre 

Co., 156 App. Div., 509, affd. 202 N. Y., 
528; 
People vs. Kaye, 146 N. Y. Supp., 398. 


This, however, is on the ground that the or- 
dinances are entirely local and concern only 
the city itself.” 


The Court held, however, that this Act is not 
within this principle but involves delegation of re- 
pealing power over matters which are not “strictly 
municipal but affect the State at large.” 

So far as this particular feature of repeal is con- 
cerned, no specifications are given how the Act is 
supposed to go beyond the municipal domain into 


64 


Point IV. eS 


the exclusive State domain; but it is a fair infer- 
ence that the Court meant to refer to the power 
of abolishing the Boards of Assessors, Public 
Safety, Health, Charity, etc., incidentally to creat- 
ing other offices to perform their functions. 

Manifestly, if this is the meaning of the Court, 
the objection adds nothing to that discussed in the 
last Point, because if the creation of offices for ad- 
ministration of those subjects may validly be dele- 
gated to the local government, the correlative re- 
peals must necessarily also be subject to like dele- 
gation. 

Nevertheless, we may invite the attention of the 
Court to certain authorities which have directly 
upheld legislative delegation of this very power of 
local repeal in reference to the same or analogous 
subject matters. 

In reference to the Public Safety function, for 
example (which is one of those held by the Court 
to be “a state function”), local repealing power 
was upheld by this Court in People ex rel. Dunn vs. 
Ham, 166 N. Y., 477-480, swpra, where a legista- 
tive act was sustained as constitutional against 
the objection that it authorized local authorities 
to abolish the office of Police Station House Keeper 
and so permitted local repeal of the legislative Act 
which had established that office. The Court dis- 
cussed the repealing aspect of the situation as 
follows: 


“The position of station house keeper was 
abolished after the passage of the act for the 
government of cities of the second class, which 
must be considered in determining the power 
of the common council to abolish the place. 
The act of 1898 (Ch., 182) effected a repeal of 


65 
Pornt IV. 


all statutes and ordinances which were in- 
consistent with its provisions [$482]. It con- 
ferred all the legislative power of the city up- 
on its common council, to which it gave au- 
thority to enact ordinances, not inconsistent 
with the laws of the State, for the government 
of the City, the management of its business, 
the preservation of good order, peace and 
health, the safety and welfare of its inhabi- 
tants, and the protection and security of their 
property ($12) The evident purpose of that 
section was to confer upon the common coun- 
cil entire legislative authority as to matters 
relating to the municipal government, except 
as limited by the statute and others not in- 
consistent with its provisions. This is clearly 
indicated by the act itself, and was plainly 
avowed by the commission which reported it 
to the Legislature (Senate Documents, 1896, 
vol. 5, No. 24). That the Legislature might 
have passed an act abolishing the office of 
station house keepers and otherwise regula- 
ting and affecting the police government of the 
city, cannot be questioned. Instead of passing 
such an act, it conferred upon the common 
councils of cities of the second class general 
power to enact ordinances for the protection 
and security of property, the preservation of 
good order, and for the safety and welfare of 
their inhabitants, which, plainly includes the 
regulation of the police and police power of 
such cities. The legislative power thus con- 
ferred is unlimited except by the provisions of 
existing laws. Hence, the common council 
possessed the power to abolish any position 
or office it deemed unnecessary which was con- 


66 


Point IV. 


nected with or incident to the police govern- 
ment of the city, unless forbidden by that act 
or some other statute then in force.” 


Again, in People vs. Kaye, 212 N. Y., 407, 416, 
affirming 160 A. D., 644, swpra, this Court upheld 
the same repealing power within the same field of 
Public Safety. This was a case in reference to fire 
precautions and the pertinent portion of the de- 
cision was in the language of the Appellate Divi- 
sion as follows: 


“Among the sections of the charter men- 
tioned in said second schedule and thus 
brought within the purview of the foregoing 
section of the Act of 1901, was Section 762. 
On Dee. 19, 1911, the board of aldermen adopt- 
ed an ordinance * * * which regulated the 
matters provided for in said Section 762 of 
the charter. The said section thereupon be- 
came automatically repealed and the ordinance 
took its place and became the law so far as 
concerns the matters therein dealt with.” 


And again this repealing power within the Pub- 
lic Safety function was affirmed in Chapman vs. 
Selover, 172 A. D., 858, 861 (Fourth Dept.), which 
upheld the provisions of Section 288 of the High- 
way Law, authorizing a village to regulate the 
speed of vehicles by ordinance and to fix the pun- 
ishment for violation thereof, “which punishment 
shall, during the existence of the ordinance, rule or 
regulation, supersede those specified in subdivision 
2 of Section 290 of this chapter, but, except in cities 
of the first class, shall not exceed the same,” and 
the Court said: 


67 
Point IV. 


“Tt will be seen that when a village adopts 
an ordinance fixing a penalty or punishment, 
then the punishment prescribed by subdivision 
2 of Section 290 is no longer applicable in that 
village.”’ 


In reference to Health, as affected by tenements 
and buildings and by the sewer systems, taxation as 
affected by public works, safety and communica- 
tions as affected by highways (all of which are 
either recognized by the Court as matters of State 
interest, or clearly are so in their proper degree), 
the local repealing power was upheld in People vs. 
Ahern, 193 N. Y., 441. 

That case upheld the section of the New York 
Charter by which it was provided that the commis- 
Sioner at the head of the boroughs “may organize 
such bureaus as he shall from time to time deem 
necessary to the proper discharge of the duties of 
his department.” This necessarily involved the 
supersession of the offices theretofore existing by 
legislative act for the administration of those func- 
tions. 

Health and public order are also involved in all 
the local option laws, and yet the delegation of re- 
pealing power under those is constitutional. 


Village of Gloversville vs. Howell, 70 N. 
Se Pree 


The control of public morals, which surely is a 
matter of State interest, was held subject to the 
right of the Legislature to delegate local repealing 
power in the Morris Theatrical License case (Mat- 
ter of City of N. Y., 131 A. D., 767, supra), and the 
Alhambra Theatre case (156 A. D., 509; affd. 202 
N. Y., 528, supra). 


68 / 
Point IV. 


With reference to the judiciary the delegation of 
repealing power was upheld in People vs. Cocks, 
172 A. D., 737 (2nd D.), which sustained an act 
authorizing a town board to change the compensa- 
tion of justices of the peace, theretofore fixed by 
statute. 

Delegation of local repealing power has been up- 
held even to the extent of authorizing villages in- 
corporated by the Legislature to terminate their 
own existence. 


Blawelt vs. Nyack, 9 Hun, 1538. 


Such illustrations might be multiplied indefinite- 
ly, but the above should suffice; and, at any rate, 
the cases are so fully collected in the proceeding 
point as to require no further citation. Reference 
may, however, be made to City of Jacksonville vs. 
Bowden, 67 Fla., 181, a case directly in point, and 
containing so well-reasoned a: discussion of the 
questions involved here that we quote it at some 
length. The legislature there had enacted: 


“That the numbers, powers, duties, terms of 
office and the time and manner of election or 
appointment of any and all boards and offiers 
of the City of Jacksonville, whether created by 
or recognized in State legislation or City ordi- 
nance, excepting only the legislative powers 
and duties of the City Council, may be amended. 
or changed, and any and all boards and officers 
whether created by or recognized in State legis- 
lation or City ordinance, may be abolished and 
new boards and officers created, by ordinance 
adopted by the affirmative vote of a majority 
of all the members of the City Council, and ap- 


69 
Point IV. 


proved by the Mayor or passed over his veto, 
and at special municipal election approved by 
the affirmative vote of a majority of the quali- 
fied electors of said City who shall vote there- 
on in such special municipal election.” 


The City Council, acting under the authority of 
this statute, passed an ordinance transferring to 
the City Council powers and duties vested in the 
Board of Bond Trustees under legislative enact- 
ment, and also defining the powers and duties of 
the mayor with reference to the police force. The 
action was brought to enjoin the submission of the 
ordinance to referendum vote, on the ground that 
the statute contained an unlawful delegation of 
power, for the same reasons as are advanced in the 
case at bar. The court reversed the action of the 
lower court in granting an injunction, and upheld 
the constitutionality of the statute and the action 
of the council in all respects. In an illuminating 
opinion, the court thus disposed of the objection 
that the act illegally permitted the city council 
to repeal acts of the legislature (pages 192-194) : 


“Tf it is clear from its terms and purpose 
that the intent of a statute is that it shall 
.supersede another statute upon a stated con- 
tingent event, the courts will give effect to such 
intent, when organic law is not thereby plainly 
violated, since the intent of the law is its vital 
force, and the province of the courts is to as- 
certain and effectuate the valid legislative pur- 
pose. 
“The statute expressly provides ‘that all 
laws or parts of laws inconsistent herewith 
are hereby repealed.’ This repeal of conflict- 


70 
Point IV. 


ing charter powers becomes operative upon the 
taking of the specifically designated action by 
‘the municipality for municipal purposes under 
the limited authority expressly given by the 
statute. This is manifestly the legislative in- 
tent, and such intent is the validity of the law. 
Thus the statute amends the charter powers of 
the city, but it does not repeal or suspend the 
operation of particular features of the charter 
acts except in the event that expressly author- 
ized action is duly taken by the municipality 
that is in accord with this statute, but it is in 
conflict with the other charter acts. The au- 
thority conferred by the statute is for a 
municipal purpose and is within the powers 
that the Legislature could lawfully confer upon 
the municipality, viz.: the creation, change and 
duty of municipal officers and boards, the legis- 
lative powers and duties of the city council 
being expressly excluded. 
* * * * * * * 
“The Constitution expressly provides the 
manner in which statutes shall be enacted by 
the Legislature itself; but in providing for 
legislative control of the municipalities the 
Constitution ordains in general terms that 
the Legislature shall prescribe the ‘jurisdic- 
tion and powers’ of the municipalities and 
‘provide for their government.’ While the 
Legislature may itself enact all the laws re- 
quired by a municipality it certainly may dele- 
gate to the municipality power to enact ordi- 
nances not in conflict with the Constitution 
that have the force of law within their proper 
sphere. In its discretion the Legislature may 
by its own direct enactment or through the 


cE 
PoIntT IV. 


agency of municipal ordinances and regula- 
tions prescribe and provide for the ‘numbers, 
powers, duties, terms of office and the time 
and manner of election or appointment of any 
or all boards and officers of the City of Jack- 
sonville;’ and the Legislature may itself pro- 
vide how many and all boards and officers of 
the city may be abolished and new boards and 
officers created, or it may delegate this power 
to the municipality or its electors without vio- 
lating the organic law of the land. This be- 
ing so, the fact that some of these regulations 
may be already directly prescribed by statute 
does not deprive the Legislature of the right to 
alter or amend them; and it may do so through 
the medium of the municipality by express au- 
thority duly given where no provision of the 
Constitution is thereby plainly violated. By 
authorizing the municipality to adopt regula- 
tions pertaining to the creation and abolish- 
ment and powers and duties of municipal 
officers and boards, that are in conflict with 
existing statutes, the Legislature in effect ex- 
pressly authorized municipal action within its 
province; and when that authorized municipal 
action is duly taken the existing statutory 
regulations in conflict therewith are by force 
of the statute giving the authority, suspended 
or abrogated. This does not in reality amount 
to the repeal of a statute by municipal action ; 
but the operation of a statute upon a particular 
subject may be suspended by the force and 
effect of another statute authorizing conflicting 
municipal action to be taken for a municipal 
purpose in accordance with express legislative 
authority given to that end.” 


72 
Point IV. 


In Gould vs. Baltimore, 120 Md., 534, 539, the 
Court, sustaining an ordinance of the City of Bal- 
timore providing for constables’ duties and com- 
pensation different from those fixed by statute, 
said: 


“It would seem, therefore, to be perfectly 
clear that as the Legislature had the right and 
power to change at any time the duties and 
compensation of constables, it could also dele- 
gate and confer upon the city the power to 
pass ordinances to accomplish the same pur- 
pose. 

“Tt is well settled that an ordinance passed 
in pursuance of express legislative authority 
is a law and has the same effect as a local law, 
and it may prevail over a general law upon 
the same subject. Balto. vs. Clunet, 23 Md., 
449; Hammond vs. Haines, 25 Md., 541; Ross- 
berg vs. State, 111 Md., 394; New Orleans Wa- 
ter Works vs. New Orleans, 164 U. S., 471; 
Walla Walla vs. Water Co., 172 U. S., 1; 2nd 
Dillon on Mun. Cor., sec. 573; 2nd McQuillan 
on Mun. Cor., 643, notes pages 149 and 1412.” 
* * * * * * % * 

“In the case at bar, the Legislature having 
delegated and conferred upon the Mayor and 
City Council of Baltimore the legislative 
power, under a special provision of the char- 
ter, to pass ordinances prescribing the duties 
and compensation of constables in Baltimore 
City, and the municipality, in pursuance of 
this express legislative authority, having 
passed Ordinance No. 202, here in dispute, it 
follows that the ordinance so passed is as valid 


(65 
PoInt IV. 


a local law for Baltimore City as if it had 
been passed. by the Legislature itself. 

“This being so, and section 206 of the Char- 
ter (Acts of 1898, Ch., 128) being enacted sub- 
sequent to the provision of the Code of Public 
General Laws, Code 1888, it is well settled by 
authority that the ordinance passed in pur- 
suance thereof, approved December 17, 1912, 
would supersede the provisions of the General 
Law (1888) relating to the duties and com- 
pensation of constables. McCracken vs. State, 
71 Md., 153; De Murguiondo vs. Frazier, 638 
Md., 94; Leitch vs. Leitch, 114 Md. 336; Ross- 
berg vs. State, 111 Md., 394; Balto. vs. Clunet, 
23 Md. 449.” 


In City of Woodland vs. Leech, 20 Cal. App., 15, 
18, 19, a statute authorized the governing body of 
a city to consolidate offices by making the city 
treasurer license and tax collector. Held, that a 
city ordinance to that effect operated to supersede 
a State statute requiring the marshal to collect 
license fees. The Court said: 


“We find nothing in the constitution to pre- 
clude the Legislature from delegating this au- 
thority to the board of trustees. The condi- 
tion simply amounts to a grant of power, to 
be exercised in the discretion of the trustees, 
to relieve one municipal officer of a ministe- 
rial executive duty and transfer it to another. 
Even if it be regarded as a legislative attempt 
to confer authority upon the local law-making 
body to create the office of city tax collector, 
it does not seem to be obnoxious to any con- 
stitutional provisions.” * * * 


74 
PoIntT IV. 


The above discussion, we believe, must dispose 
of the point; but we may for a moment refer to 
an argument which was made below, to the effect 
that the statute, as construed, gives the local coun- 
cil power to repeal general State laws. Even if 
the Act had provided for repeal of some general 
State law (which as we shall show it does not), 
the cases above cited show it would still be valid 
so long as the repeal is only of the local applica- 
tion and merely a part of a transition from a cen- 
tralized regulation of the subject to local. home 
rule, and does not give a municipality any power 
beyond its own geographical boundaries. Suppose, 
for example, the Legislature, after having dealt 
with charity matters by general law, fixing a uni- 
form system applicable alike to all localities in the 
State, should decide that the localities differed to 
such an extent that the subject could be 
better dealt with by local regulations conform- 
ing to local conditions and the wishes of the local 
inhabitants. Could not the Legislature grant home 
rule on that subject, at the option of the several 
localities, and still continue the general law until 
such time as the localities adopted different regu- 
lations pursuant to their home rule powers? The 
position taken below leads to the result that when 
the regulation of a subject matter has once been 
centralized and prescribed by a uniform general 
law, it can never be decentralized and made sub- 
ject to local home rule; because the Legislature 
cannot, as a practical matter, repeal the existing 
general law in advance of the adoption of some sub- 
stitute, and cannot, as a constitutional matter. (so 
it is claimed) allow the existing general law to be 
superseded piecemeal upon the adoption of con- 
flicting regulations by the local authorities. The 


75 
Point IV. 


only other possible course is for the Legislature it- 
Self to prescribe the varying local regulations, 
which of course would equally nullify the home 
rule idea. 

But we do not have to maintain this proposition 
here, because, as stated in the dissenting memor- 
andum of Mr. Justice Kruse, the provisions for 
repeal apply “only to such particular powers as 
are committed by the Legislature to the local au- 
thorities, and no further.” 

The contrary argument was based on the follow- 
ing passages from the Act, in which, however, the 
words which we have printed in bold face seem to 
us to demonstrate its unsoundness : 


“8, Existing laws continued. Except in so 
far as any of its provisions shall be inconsist- 
ent with this act, the charter of the city, and all 
special or general laws applicable thereto, 
shall continue in full force and effect until 
and unless superseded by the passing 
of ordinances regulating the mat- 
ters therein provided for; but to the 
extent that any provisions thereof shall be in- 
consistent with this act the same are 
hereby superseded.” 

“Sec. 37. Effect upon provisions of existing 
law of adoption of ordinance regulating sub- 
ject matter thereof. Until superseded as 
herein provided, all provisions of law 
regulating the exercise of the powers 
and the performance of the duties 
of officers and employees of any city 
shall continue in full force and effect. The 
council under any one of the plans of govern- 
ment defined in this act as plan A, B, C, D, 


76 


Point IV. 


E or F shall have power, subject to the pro: 
visions of this act, to confer by ordinance upon 
any officer or employee of the city any powers, 
or to impose upon any such officer or employee 
any duties, theretofore conferred or imposed 
upon any officer or employee by provision of 
law, and such powers or duties shall there- 
upon devolve upon or be discharged by such 
officer or employee upon whom the same shall 
have been so conferred or imposed; but the 
provisions of law regulating the 
exercise of such powers or the 
performance of such duties shall, 
subject to being superseded as 
herein provided, continue in force and 
apply to the exercise or perform- 
amce thereof by the officer or employee 
upon whom such powers or duties are 
conferred or imposed, and whenever by any 
such ordinance all the powers and duties of 
any appointive officer or employee of the city 
are conferred or imposed upon one or more 
other officers or employees, such ordinance may 
abolish the office or employment held 
by the officer or employee whose powers and 
duties shall have ceased, and thereupon the 
term of office or employment of such officer 
or employee shall expire. The council under 
any one of the plans of government defined in 
this act as plan A, B, C, D, E or F shall, sub- 
ject to the provisions of this act, have power 
to regulate by ordinance the exercise of 
any power and the performance of any 
duty by any officer or employee of the city; 
and upon the passing of any such ordinance 


Ta 
Point IV. 


every provision of the charter or 
of the second class cities law [n. b., 
but not general laws], applicable to such 
city, regulating the matters, or any of 
them, provided for in such ordinance, 
[i, e., ordinance regulating “the exercise of 
any power and the performance of any duty] 
shall cease to have any force or effect in such 
city. But nothing herein contained shall be 
deemed to authorize the repeal or superseding 
of any provisions of law regulating the manner 
in which, or the conditions subject to which, 
franchises may be granted, or city real estate 
leased or sold, or municipal indebtedness in- 
curred in any city, except to the extent of 
transferring powers or duties relating thereto 
to officers or employees of the city; and noth- 
ing herein contained shall be deemed to author- 
ize the repeal or superseding of any provision 
of law requiring any matter to be submitted 
to the vote of the electors or taxpayers.” 


Even the exact letter of these clauses demon- 
strates that they do not affect or seek to affect in 
any way the scope of the city’s powers, nor to re- 
peal every act of the legislature on the subject 
of an ordinance, but only to supersede provisions 
regulating the matters * * * provided for in such 
ordinances i. e., those dealing only with the “regu- 
lation” of the “exercise” and “performance” of 
powers and with the “offices and employments” 
by which they are administered; and this is the 
whole spirit of the act, as we have shown more 
fully above. 

Surely, no Legislative Act ought to be dealt with 
so meticulously, especially on a constitutional issue, 


78 
Point IV. 


as the argument we have discussed deals with this 
one. The problem confronting the Legislature called 
for practical and sensible statemanship and its 
solution should be dealt with in the same spirit. 

Of course, it was theoretically possible for the 
Legislature to dictate to the city precisely the offices 
and machinery and even ordinances by which it 
should “regulate” the “exercise” and “performance”’ 
of its charter powers, but that would be only to 
violate the fundamental principles of Home Rule 
and local right in the utmost detail and throw 
upon the Legislature the totally impracticable 
burden of all local legislation and administration. 

In this particular situation the plain purpose of 
the legislature was to recognize the rights of the 
people of a locality on the subject of the form and 
administration of their own government, and to 
provide for the transition from the old form to 
such new one as they might select from among 
those authorized by the Legislature. 

Obviously, it was impossible to chop off the old 
form of government at any one instant and put on 
the new form in full working order at the same in- 
stant. A gradual transition was necessary. It 
would have been absurd for the Legislature to make 
separate legislative acts for each stage of this 
transition. The sensible course, and the only 
practical course, was the one it took, by which the. 
old machinery was superseded step by step as the 
new machinery authorized by the Legislature was 
established by the local authorities. 

This, the only really practical course necessarily 
involved delegation of local power to determine 
when the old administrative arrangements should 
become repealed, but that has no true legal relation 
with the extent of the city powers, or with general 


79 
Point IV. 


provisions of law defining or restricting those 
powers or dealing with them in any way. 

The repealing power is not only limited, as shown 
above, to regulatory acts, but even as to those is 
confined to provisions “of the charter or of the 
second class cities law, applicable to such city.” 
There is not, as was argued below, any grant of 
power to repeal or supersede any general law of the 
state. Section 8, which continues existing general 
and special laws “until and unless superseded by 
the passing of ordinances regulating the matters 
therein provided for” grants no power to pass such 
Superseding ordinances, but refers to Section 37, 
where is found the only grant of that power; and 
the power is there expressly limited to provisions . 
of the charter or of the second class cities law affect- 
ing the city. 

In the absence of an express grant of power to 
repeal general laws of the state, the existence of 
such a power is not to be implied, but the regulatory 
power granted to the city must be exercised subject 
to and in harmony with the general laws of the 
state. 

In Mills vs. Sweeney, 219 N. Y., 2138, 219, the 
Court, holding that the common council of Buffalo 
had no implied power to provide by ordinance for 
a referendum on all public questions, said: 


“A municipal corporation, says Judge Dillon 
‘cannot in virtue of its incidental power to 
pass by-laws, or under any general grant of 
that authority, adopt by-laws which infringe 
the spirit or are repugnant to the policy of the 
state as declared in its general legislation.’ ” 


People ex rel. Presmeyer vs. Commissioners of 
Police, 59 N. Y., 92, 95, 96, supra, held that an 


80 


Point IV. 


amendment to the Brooklyn charter transferring 
to a local board of excise the powers and duties 
of boards of commissioners of excise under the 
state law, left the new board subject to the provis- 
ions of the existing state laws on the subject. 

People vs. Morris, 138 Wend., 325, supra, held that 
a provision of the Ogdensburg charter empowering 
the village trustees to regulate and license grocers 
to sell liquor to be consumed on the premises, was 
subject to a general law of the state subsequently 
enacted, prescribing the conditions on which such 
licenses might be issued. 

People ex rel. Knoblauch vs. Warden, 216 N. Y., 
154, 157, 160, 161, held that the general ordinance 
making power granted to the New York Board of 
Aldermen by the Greater New York Charter was 
subject to health regulations adopted by the city 
board of health pursuant to the general health law 
of the state. 

Even in other states whose constitutions express- 
ly confer upon cities the right to make their own 
charters, it has been held that the exercise of this 
power is subject to the general laws of the state. 


Ewing vs. Hoblitzell, 85 Mo., 64, 76-78; 

State ex rel. Goodman vs. Police Commis- 
sioners of Kansas City, 184 Mo., 109; 
133, 134; 

City of St. Lows vs. Meyer, 185 Mo., 583, 
597, 598; 

Paterson vs. Chicago & Alton Ry Co., 265 
Mo., 462, 467 et seq; 

Staude vs. Election Commissioners, 61 
Cal., 313, 320, 321; 

Thomason vs. Ashworth, 73 Cal. 73, 
76-79 ; 


81 
Point IV. 


Kennedy vs. Miller, 97 Cal., 429, 433: 

Hancock vs. Board of Education, 140 Cal., 
554, 561; 

Coleman vs. City of La Grande, 73 Or., 
521, 525; 

West Linn vs. Tufts, 75 Or., 304; 

Cole vs.,Seaside, 80 Or., 73, 86. 


It is submitted that the following propositions 
bearing on the present point are clearly estab- 
lished : 


(1) The Act is not unconstitutional because the 
exercise by the city of the ordinance-making power 
granted by the Act may operate to repeal laws of 
the State. 


(2) While power to repeal by ordinance general 
laws of the State may be constitutionally granted, 
if limited to the operation of those laws within the 
locality, the present act does not contain any such 
grant, but, on the contrary, excludes such power 
by expressly limiting the grant of repealing power 
to provisions of the charter or of the second class 
cities law applicable to the city. 

From these propositions it follows that there is 
no constitutional prohibition preventing the dele- 
gation by the present act of power to enact ordi- 
nances transferring or regulating the exercise of 
powers, with the effect of superseding provisions of 
the charter or of the second class cities law appli- 
cable to the city regulating the exercise of the pow- 
ers dealt with by such ordinance, 


82 
POINT V. 


The Court below erred in applying 
the doctrine of Barto vs. Himrod to 
the present situation, notwithstand- 
ing all the subsequent cases which 
have denied its application to such 
situations, 


This case of Barto vs. Himrod, 8 N. Y., 488, dealt 
with an Act of the Legislature which provided for 
a general state-wide referendum on the establish- 
ment of a general State free school system. The 
Court held that this referendum was unconstitu- 
tional because it attempted to place upon the citi- 
zens of the State the exercise of the legislative 
power with which the Legislature itself had been 
charged by Article III, Section 1, of the Constitu- 
tion. 

We believe that the numerous subsequent deci- 
sions of this Court overwhelmingly establish the 
inapplicability of Barto vs. Himrod to such a stat- 
ute as this, but the Court below was of opinion 
that the present act was not a “completed law,” as 
it left the Legislature, but attempted to give un- 
constitutional legislative power to the local author- 
ities to complete it. 

It was not the optional feature of the law which 
was criticized; the validity of that must be con- 
ceded on the authorities cited above (Point I), and 
is in fact conceded here. The point of the Court’s 
objection is fully stated in the following passage 
of the opinion below: 


“The rule above laid down [i. e., the rule by 
which Barto vs. Hiumrod has been held inap- 
plicable to the passage of completed laws not 


83 
POINT V. 


to take effect until approved hy a popular 
vote] exists only when the statute is a com- 
pleted law when it leaves the hands of the 
legislature. If the enactment itself is incom- 
plete until further action is had the principles 
above stated have no application. Barto vs. 
Himrod, 8 N. Y., 488, 490; People vs. Kennedy, 
207 N. Y., 548. The purpose of this statute 
was to furnish a complete plan of city govern- 
ment and the difficulty with the proposition 
thus advanced is that the legislature has not 
enacted in this case any completed law upon 
the subject. It has not defined what the ordi- 
nances shall be which are to displace the pres- 
ent city government, and it leaves that matter 
to be determined solely by the city council to 
be selected under the act. It is the discretion 
of the city council, therefore, and not the ac- 
tion of the legislature, which makes the stat- 
ute complete.” 


The argument of the Court on this proposition 
is in effect a denial of the principal of home rule, 
and so we have explained above. 

Furthermore, to say that an Act which grants 
a City Council power to make ordinances “regu- 
lating the exercise of the powers and the perfor- 
mance of the duties of officers and employees of” 
the city (Act §8) is unconstitutional because it 
fails to prescribe “what the ordinances shall be” 
seems to us a palpable absurdity. It is either a 
decision that the legislature can legislate only in 
specific detail and not in general terms or it is an 
assertion that the local ordinance making power 
cannot be delegated without such a prescription 
in advance of the ordinances as would deprive the 


84 


POINT V. 


council of any discretion as to “what they shall 
be”; and it might as well have been said that the 
statutes upheld in the Rome Bank, Clarke, Starin, 
and Gould cases* were all unconstitutional, be- 
cause they failed to prescribe what bonds the cities 
should issue, or that the statute upheld in the Corn- 
ing case* was unconstitutional because it failed to 
provide in detail what basin the city of Albany 
might erect; or that the statute upheld in the 
Gloversville case* was unconstitutional because it 
failed to prescribe the local liquor option which 
should be exercised; or that the statute up- 
held in the Gilbert Elevated Ry. case* was 
unconstitutional because it failed to prescribe 
what the manner of exercise of street railway 
franchises should be, which the city was autho- 
rized to prescribe; or that the statute upheld in 
the Ahern case, supra (193 N. Y., 431), was un- 
constitutional because it failed to prescribe what 
bureaus the borough presidents should create, or 
that the statutes upheld in Soloman vs. The Mayor, 
538 N. Y., 62, Costello vs. The Mayor, 63 N. Y., 48, 
and People vs. Ham, 166 N. Y., 477, 480, 481, supra, 
were unconstitutional because they failed to pre- 
scribe what offices the local authorities might ecre- 
ate. 

In short, most cases cited on this brief are sub- 
ject to the same criticism which the court has made 
of this act, in this respect, and we do not consider 
further discussion necessary except to quote the Ian- 
guage of People vs. Morris, 13 Wend., 325, 330, 
334, which is typical of the principles established 
by the cases: 


*All cited under Point I, supra. 


S 
PoINT V. 


ce 


“Instead of prescribing at their discretion 
every duty to be performed, and forbidding 
every act to be avoided—in a word, directing 
the whole system of government to be observed 
and executed—the legislature have merely de- 
fined the outlines and leading principles, and 
conferred upon the inhabitants, within the 
bounds of the corporation, the power at dis- 
cretion to fill up and carry them into opera- 
tion.” 


Upon this point, see also 


Hanover Bank vs. Moyses, 186 U. S., 181; 
Clark Distilling Co. vs. Western Mary- 
land R’way Co., 242 U. S., 311. 


The act is complete in itself. It prescribes a com- 
plete form of charter which becomes effective as 
soon as the people of the city vote to adopt it. It 
declares the powers of the council. Among them is 
the power to pass ordinances regulating certain 
matters. The fact that the ordinances remain to 
be passed does not render the grant of power to 
pass them incomplete. The holding below to the 
contrary would lead to the absurd result that every 
grant of power, to legislate, or do anything else, 
is incomplete because the power granted remains 
to be exercised. 

The decision also goes counter to the well settled 
principle that ordinances passed under a power 
delegated by the legislature have the same force as 
acts of the legislature. This was expressed so long 
ago as 1826 by Savage, J., speaking for the Supreme 
Court in Presbyterian Church vs. Mayor, 5 Cow., 
538, 541, upholding an ordinance of the city of New 
York prohibiting the use of certain lands for ceme- 
tery purposes: 


86 


PoInT VY. 


“* * * the effect of the by-law is the same 
as if that by-law had been an act of the state 
legislature. It is expressly authorized by the 
legislature; and whether it be their act or an 
act of the local city legislature, makes no dif- 
ference.” 


It was again expressed so recently as May, 1917, 
by Collin, J., speaking for this Court in Crayton 
vs. Larabee, 220 N. Y., 498, 501, upholding a local 
health ordinance of the city of Syracuse, with 
citation of a few of the many intervening decisions 
to the same effect: 


“Valid ordinances have, within the proper 
territory, the character and effect of a statute 
and may correctly be said to be in force by 
the authority of the state.” 


The argument that although an _ ordinance 
adopted under a delegated power has the force of 
law, nevertheless an act of the legislature delega- 
ting the ordinance-making power must provide in 
advance what the ordinances adopted shall be, or 
else it will be incomplete and unconstitutional, in- 
volves a manifest contradiction in terms. 

If, then, we are right in contending that the 
grant of power is valid, it necessarily follows that 
it cannot be successfully attacked as incomplete. 


87 
POINT VI. 


The Court below erred in holding 
that the Legislature violated Article 
III, Section 1,and Article XII, Section 
1, of the Constitution by allowing: the 
city to determine the number of its 
officers and employees and their 
powers and duties. 


On this the position of the Court below is thus 
stated by the adopted opinion : 


“These corporations [i. e. municipal cor- 
porations| the legislature is authorized to 
create and for that purpose it must furnish 
them with a charter which is the franchise for 
their existence and provide for them the method 
of their self-government. All of these func- 
tions are strictly legislative and can not be 
delegated by the legislature.” 


The surrounding discussion by the trial court 
indicates its opinion that the cities cannot consti- 
tutionally be allowed to determine for themselves 
by what officials and machinery they shall exercise 
the powers they acquire from the state—i. e. “the 
method of their self-government.” 

Here again the opinion is in direct conflict with 
the principle of fostering home rule. It also in- 
volves an’ unauthorized construction of Article 
XII, Section 1, of the Constitution. 

That section requires the legislature to provide 
for the organization of cities and villages; it does 
not require the legislature itself to organize the 
government of each city and each village in detail. 
The duty of the Legislature is discharged when it 


88 
Point VI. 


grants a charter delimiting the powers granted to 
the city and to its governing body. - The extent of 
the powers, how far they shall be prescribed in de- 
tail, and how far left to the local authorities, rest 
in the discretion of the Legislature; this, too, has 
been demonstrated by the authorities cited under 
Point III, supra. 

Grants of power in city charters authorizing city 
authorities to fill in details and regulate the ma- 
chinery of the local government are a common- 
place of charter legislation. 

Governor Nicolls Charter, granted to the City 
of New York in 1665, empowered it “to appoint 
such under officers as they shall judge necessary 
for the ordinary execution of justice.” (Printed 
in Ash’s Greater New York Charter, 1906 Ed., 
page 1161). . 

The Dongan Charter of 1686, Section 7, granted. 
to the city power. 


“To make laws, orders, ordinances and con- 
stitutions in writing, and to add, alter, dimin- 
ish or reform them, from time to time, as to 
them shall seem necessary and convenient 
(not repugnant to the prerogative of his most 
sacred majesty aforesaid, his heirs and suc- 
cessors, or to any of the laws of the Kingdom 
of England, or the laws of the general 
assembly of the province of New York), for 
the good rule, oversight, correction and gov- 
ernment of the said city and liberties of the 
same, and of all the officers thereof and for the 
several tradesmen, victualers, artificers and of 
all other the people and inhabitants of the 
said city.” 


89 


Point VI. 


The Montgomerie Charter of 1730, Section 14, 
provided: 


“That the said common council of said city, 
for the time being, or the major part of them, 
have and may, and shall have full power, au- 
thority and license to frame, constitute, or- 
dain, make and establish, from time to time, 
all such laws, statutes, rights, ordinances and 
constitutions, which to them, or the greater 
part of them, shall seem to be good, useful or 
necessary for the good rule and government of 
the body corporate aforesaid; and of all offi- 
cers, ministers, artificers, citizens, inhabitants 
and residents of the said city, within the lim- 
its thereof, and for declaring how and after 
what manner and order the mayor, re- 
corder, aldermen and assistants of the said 
city, for the time being, and all and every of 
their officers and ministers, and all officers and 
ministers and all artificers, inhabitants and 
residents of the same city, and their factors, 
servants and apprentices, in their offices, func- 
tions and business, within the said city and 
liberties thereof for the time being, and 
from time to time, shall use, carry and 
behave themselves; and for the _ farther 
public good, common profit, trade and better 
government and rule of the said city.” 


These charters were confirmed, as stated by 
Chancellor Kent in his treatise on the charter of 
the City of New York, Edition of 1854, page 287: 


“The charter was explicitly confirmed in all 
its parts and bearings by an act of the colonial 


90 


POINT VI. 


legislature of the 14th of October, 1732; and 
it was along with other charters saved and 
confirmed by the constitution of 1777, and 
again by the constitution of 1821.” 


The charter granted to the city of New York by 
the legislature of 1849 (Laws of 1849, chapter 187) 
provided as follows: 


819. “It shall be lawful for the common 
council of said city to establish such other de- 
partments and bureaus as they may deem the 
public interest may require, and to assign to 
them and those herein created, such duties as 
they may direct, not inconsistent with this 
act.” 


§20. “The number of officers or clerks in the 
several departments shall be prescribed by the 
common council. The terms of all the charter 
officers, not prescribed by the law of the state, 
shall be fixed by the common council. All 
officers whose appointments are not otherwise 
provided for, shall be elected or appointed in 
such manner as the common council shall by 
law prescribe.” 


These broad provisions have been continued to 
this day. They are now embodied in Section 1543 
of the Greater New York Charter (Laws of 1897, 
ch. 378, as re-enacted Laws of 1901, ch. 461), which 
provides : 


“The number of all officers, clerks, em- 
ployees, laborers and subordinates in every de- 
partment shall be such as the heads of the re- 


91 
PoInt VI. 


spective departments and borough presidents 
shall designate and approve, not exceeding the 
number limited by any ordinance of the board 
of aldermen. The duties of all such officers, 
clerks, employees, laborers and subordinates 
shall be such as the heads of the respective de- 
partments and borough presidents shall desig- 
nate and approve, subject to the provisions of 
law and to the ordinances of the board of 
aldermen. The salaries or wages of all such 
officers, clerks, employees, laborers and_ sub- 
ordinates in every department shall be such as 
shall be fixed by the board of aldermen upon 
the recommendation of the board of estimate 
and apportionment in the manner provided in 
this act. Any head of department or borough 
president, may, with the consent of the board 
of estimate and apportionment, consolidate 
any two or more bureaus established by law, 
and may change the duties of any bureau.” 


The charter of the City of Watertown (Laws of 
1897, ch. 760) enacted the same year as the Greater 
New York Charter, contains grants of power in 
very much the same broad language: 


§36. “Excepting as herein otherwise pro- 
vided, the common council shall have power 
to fix and change the salaries of all officers of 


the city.” 


$43. “The common council shall have power 
to provide by ordinance or resolution for the 
enforcement of the powers hereby expressly 
granted to it or to any of the boards or officers 
of the city, where the method of the execution 


92 


Point VI. 


of the powers is not herein expressly pre- 
scribed, and shall have power to pass any 
ordinance or resolution not repugnant to the 
constitution of the laws of this state, not pre- 
scribed herein or inconsistent herewith, for any 
local purpose pertaining to the government of 
the city, the management of its business, the 
preservation of order, peace, health, safety 
and welfare of the city and the inhabitants 
thereof, * * * and * * * particularly to en- 
act ordinances for the following purposes: * * * 


16. To enact all such ordinances as may be 
necessary to carry into effect any general 
power or discharge any duty conferred or pro- 
posed by this act.” 


§48. “Whenever any executive or adminis- 
trative function shall be required to be per- 
formed by any ordinance or resolution of the 
common council, the same shall be performed 
by the proper executive or administrative 
officer or board designated in the order or reso- 
lution, and in case no such designation be 
made, the mayor shall make the same.” 


§49. “The common council may, by ordi- 
nances not inconsistent with the provisions of 
this act, or the laws of the state, regulate the 
powers and duties of any city officer * * *, 
The common council shall also have power to 
provide for the enforcement by ordinance of 
any regulation of any administrative board for 
the conduct of the affairs committed to said 
board.” 


- 


93 
Point VI. 


The Watertown charter also gives board powers 
to the various governing boards and particularly 
to the board of public safety: 


§142. “The board shall have power to make 
such rules and regulations consistent with the 
provisions of this act as it may deem best for 
the government of itself and for the govern- 
ment and organization of the fire and police de- 
partments.” 


8144. “The board * * * ghall recommend 
* * * to the common council plans for the 
organization of the police and fire department ; 
upon the approval of such recommendations 
by the common council, the board of public 
safety shall be authorized to employ such 
number of policemen and firemen and organize 
the police and fire departments for the city.” 


In the next year, 1898, was enacted the second 
class cities law (Laws of 1898, ch. 182, originally 
known as the White charter), which conferred 
broad powers on all second class cities. (The sec- 
tion numbers are those contained in the Con- 
solidated laws) : 


§16. “The salary of every city officer and the 
salary or compensation of every person paid 
out of the funds appropriated by the city, 
where not specifically fixed by statute, shall be 
fixed and determined by the board of estimate 
and apportionment * * *. All such salaries 
and compensation shall be payable in such in- 
stalments and at such times as such board shall 


determine.” | 


94 
Point VIL. 


§30. “The legislative power of the city is 
vested in the common council thereof, and it 
has authority to enact ordinances, not incon- 
sistent with law, for the government of the 
city and the management of its business, for 
the preservation of good order, peace and 
health, for the safety and welfare of its in- 
habitants and the protection and security of 
their property.” 


$40. “The common council may, by ordi- 
nance passed by three-fourths of all its mem- 
bers, not inconsistent with this chapter, or 
other laws of the state, regulate the powers and 
duties of any city officer or department * * *.” 


§41. “Whenever an executive or administrat- 
ive function is by law or ordinance of the com- 
mon council required to be performed, the same 
shall be performed by the proper executive or 
administrative officer or department, design- 
ated in the law or ordinance, and in case no 
such designation be thus made, the mayor shall 
make the same, but no ordinance shall be pass- 
ed interfering with the exercise of the executive 
functions of the officers, departments and 
boards of the city, as provided in this chapter 
or otherwise by law.” 


$74. “The board of estimate and apportion- 
ment, except as otherwise provided by law, 
shall have authority to fix the salaries or com- 
pensation, and determine the positions and 
numbers of all city officers and employees, of 
each office, board and department. * * * ” 


95 


Point VI. 


8133. “The commissioner of public safety 
shall make, adopt and enforce such reasonable 
rules, orders and regulations, not inconsistent 
with law, as may be reasonably necessary to 
effect a prompt and efficient exercise of all the 
powers conferred and the performance of all 
duties imposed by law upon him or the depart- 
ment under his jurisdiction. He is authorized 
and empowered to make, adopt, promulgate 
and enforce reasonable rules, orders and reg- 
ulations for the government, discipline, ad- 
ministration and disposition of the officers and 
members of the police and fire depart- 
Peet ee Gigs a 


§134. “The police and fire department shall, 
as to their membership and component parts, 
remain as now constituted until the same shall 
be changed by action of the common council. 
The common council has power at all times by 
ordinance to determine the number of officers 
and members of each of said departments and 
the classes and grades into which they shall be 
divided, except that it shall not have the power 
to diminish the number of the members of 
either of said departments as now fixed. The 
number of officers or members of either of said 
departments shall not be increased without the 
approval of the board of estimate and appor- 
tionment. The common council may pass or- 
dinances not inconsistent with law for the 
government of the police and fire departments, 
and regulating the powers and duties of their 
officers and members.” 


The broad provisions of this act were upheld and 
enforced in People ex rel. Dunn vs. Ham, 166 N. Y., 


96 
Point VI. 


477, 480, 481, supra, and in City of Rochester vs. 
Macauley-Fien Manufacturing Co., 199 N. Y., 207, 
210, 211, supra. 

A later act, granting powers to all cities in 
Similar broad and general terms is the Municipal 
Empowering Act referred to above,—Laws of 1913, 
ch. 247, adding article Il-a, “Powers of Cities” to 
the general city law. Section 19 contains a general 
grant of powers in the following terms: 


\ 


“Every city is granted power to regulate, 
manage and control its property and local 
affairs and is granted all the rights, privileges 
and jurisdiction necessary and proper for 
carrying such power into execution. No enum- 
eration of powers in this or any other law shall 
operate to restrict the meaning of this general 
grant of power, or to exclude other powers 
comprehended within the general grant.” 


Section 20 adds to this grant of powers a grant 
of powers more specifically enumerated, including 
the following: 


13. “To maintain order, enforce the laws 
protect property and preserve and care for the 
safety, health, comfort and general welfare of 
the inhabitants of the city and visitors there- 
to; and for any of said purposes to regulate 
and license occupations and businesses.”’ 


17. “To determine and regulate the number, 
mode of selection, terms of employment, 
qualifications, powers and duties and com- 
pensation of all employees of the city and the 
relations of all officers and employees of the 


97 
Point VI. 


city to each other, to the city and to the in- 
habitants.” 


19. “To regulate the manner of transacting 
the city’s business and affairs and the report- 
ing of and accounting for all transactions of 
or concerning the city.” 


22. “To regulate by ordinance any matter 
within the powers of the city, and to provide 
for the enforcement of ordinances by legal 
proceedings, to compel compliance therewith, 
and by penalties, forfeitures and imprisonment 
to punish violations thereof.” 


Section 21 provides: 


“The terms ‘public or municipal purpose,’ 
and ‘general welfare,’ as used in this article, 
shall each include the promotion of education, 
art, beauty, charity, amusement, recreation, 
health, safety, comfort and convenience, and 
all of the purposes enumerated in the last pre- 
ceding section.” 


Section 22 provides: 


§22. “This grant in addition to existing 
powers. The powers granted by this article 
shall be in addition to and not in substitution 
for, all the powers, rights, privileges and func- 
tions existing in any city pursuant to any 
other provision of law.” 


Section 24 provides: 


“This article shall be construed, not as an 
act in derogation of the powers of the state, 


98 
Point VI. 


but as one intended to aid the state in the ex- 
ecution of its duties, by providing adequate 
power of local government for the cities of the 
state.” 


This act has been approved in a number of deci- 
sions, notably by Pound, J., in Mills vs. Sweeney, 
219 N. Y., 218, 221, and has been applied and en- 
forced in Hellyer vs. Prendergast, 176 App. Div., 
383. 

This series of enactments and many others like 
them are in all essential particulars the precedents 
and models upon which the present act is based. 

The weight to be given to this long series of 
legislative enactments as constituting a prior, con- 
temporaneous and subsequent demonstration of the 
extent of power understood to be vested in the 
Legislature by the constitution is thus stated in 
People ex rel. Hinsfeld vs. Murray, 149 N. Y., 367, 
376: 

“This legislative policy which has prevailed 
for so long a period, sanctioned by numerous 
statutes, never questioned in the courts and 
acquiesced in by all departments of the state 
government, it is a practical construction of 
the constitutional provision now in question 
* * * and this construction ought not now 
to be disturbed.” 


See also 


Matter of City of New York (Tibbett 
Av;),(22U5N. Yi, lain: 


There are also a large number of direct Court 
constructions of the Constitution on this subject 


99 | 
Point VI. 


and they are uniformily contrary to the decision 
below. Z 

The practice represented by the above charters 
was common so long ago as to be referred to as a 
well known mode of legislation in People vs. 
Morris, 13 Wend., 325, 330, as follows: “Instead of 
prescribing at their discretion every duty to be per- 
formed, and forbidding every act to be avoided—in 
a word directing the whole system of government 
to be observed and executed—the legislature has 
merely defined the outlines and leading principles, 
and conferred upon the inhabitants within the 
bounds of the corporation, the power at their 
discretion to fill up and carry them into opera- 
tion.” 

In People ex rel. City of Rochester vs. Briggs, 
50 N. Y., 553, 558, 559, the Court, discussing the 
contents of a city charter, which it held properly 
to embrace all the “laws relating to any specified 
municipal corporation * * * those which create 
the body, or define and regulate its powers and 
prescribe the mode of their exercise,” said: “A 
municipal corporation * * * possesses such 
powers, and such only, as are conferred upon it 
by the legislature; and they are to be exercised 
in such form, mode and manner, and by such 
agencies as the legislature may from time to time 
prescribe within the limits of the constitution.” 

See, also, Townsend vs. Mayor, 16 Hun, 362, 364; 
midair N. Y., 362: 

The grant of power which is here made the prin- 
cipal subject of attack, viz.: the grant of power to 
the local authorities to control the creation, ad- 
ministration and duties of local offices and em- 
ployments has been many times specifically sus- 
tained by the courts of this State. 


100 
Point VI. 


People vs. Conover, 17 N. Y., 64, 66. 
Sullivan vs. Mayor, 53 N. Y., 652. 
Costello vs. Mayor, 63 N. Y., 48. 

People vs. Ham, 166 N. Y., 477, 480, 481. 
People vs. Sing Sing, 180 N. Y., 527, af- 
firming 54 A. D., 555 (A. D., 1 D.). 

People vs. Ahearn, 193 N. Y., 441. 

Healey vs. Dudley, 5 Lans., 115 (4 D.). 

Miller vs. Warner, 42 A. D., 208, 209 (4 
D.). 

Meyers vs. Mayor, 69 Hun, 291 (1 D.). 

Eckerson vs. City, 80 A. D., 12 (1 D.), 
ail 176° N. ¥., 609. 

People vs. Cocks, 172 A. D., 787 (2 D.). 

City vs. Sailors’ Sung Harbor, 85 A. D., 
355, affirmed on Op. below, 180 N. Y., 
527. 

Hellyer vs. Prendergast, 176 A. D., 383. 

Norris vs. City of Brooklyn, 19 Hun, 296. 


In People vs. Conover, 17 N. Y., 64, 66 (supra), 
in holding that the Governor had no power to ap- 
point a street commissioner in the City of New 
York, after the passage of Chapter 28, Laws 1849, 
and Chapter 278, Laws 1849, the Court, at pages 
66-67, expounded the city’s complete control in 
all respects over offices created by it. 

In Sullwan vs. Mayor, 53 N. Y., 652 (supra), 
the Court upheld the power of the New York City 
authorities to create the position of janitor in the 
police force, notwithstanding the tax levy act of 
1869 expressly prohibited the creation of new of: 
fices or departments. The Court ruled that the 
position in question was not an office within this 
prohibition, but an employment, and so fell with- 
in the general power of the local authorities. 


101 
Point VI. 


In Costello vs. Mayor, 63 N. Y., 48 (supra), the 
Court went still farther than the case of Sullivan 
vs. Mayor, swpra, and sustained the validity of a 
city ordinance providing for an additional clerk 
to the Board of Aldermen and held that this, 
though the creation of an office, was still not pro- 
hibited by a tax levy act of 1869, discussed in the 
Sulliwan case. 

In People vs. Ham, 166 N. Y., 477, 480, 481 
(supra), the Court held, under the second class 
cities law continuing the police department until 
changed by the city council, that the City Council 
of Albany had power to abolish the office of sta- 
tionhouse keeper, which was provided for by its 
charter. 

In People vs. Sing Sing, 54 A. D., 555 (1 D.), 
supra, Section 7 of the Sing Sing Charter (Chap- 
ter 83, Laws 1896), was upheld. This section pro- 
vided that 


“all other officers shall be appointed for the 
terms and in the manner hereinafter pro- 
vided, or as may be hereafter fixed and de- 
termined by” the Village Trustees. 


Under this section, the Trustees had provided 
that the term of office of policeman should expire 
on each first of May, and this action was attacked 
on the ground that it was made pursuant to an 
unconstitutional delegation of power. This con- 
tention was urged on the authority of People vs. 
Cram, 165 N. Y., 166, but the Court distinguished 
that case on the ground that it involved an at- 
tempted delegation of power to fix terms of office 
to the Civil Service Commission, and that its prin- 
ciple did “not extend to a delegation of power to 


102 
Point VI. 


a board of village trustees which clearly may be 
invested with other powers, as for instance, to 
make ordinances which have the same force with- 
in the corporate limits as the statute passed by the 
Legislature itself” (page 557). 

In People vs. Ahearn, 193 N. Y., 441 (supra), 
the Court upheld the constitutionality of Section 
388, Chapter 466, Laws 1901 (The New York City 
Charter), which gave to the Borough President 
the power “to organize such bureaus as he shall 
from time to time deem necessary to the proper 
discharge of the duties of his department.” The 
courts below had held this provision unconstitu- 
tional upon grounds similar to those asserted by 
the plaintiffs here, and in its opinion of reversal 
the Court of Appeals overruled those contentions, 
with a valuable discussion, holding: 


“the power clearly belongs to that class which 
‘can be delegated to administrative officers of 
the municipality for exercise within the mu- 
nicipality,’ of which many notable examples 
are given by the Chief Judge of this Court in 
Village of Saratoga Springs vs. Saratoga Gas, 
etc., Co. (191 N. Y., 123),” page 445. 


In Healey vs. Dudley, 5 Lans., 115 (supra), the 
General Term, in holding unconstitutional an act 
which authorized the county supervisors to fix the 
salaries of county judges, expressly based its deci-. 
sion upon the fact that county judges were not local 
officers (page 120). 

In Miller vs. Warner, 42 A. D., 208, 209 (supra), 
the Court, in holding that an electrical operator 
of the police telegraph system in Rochester was 
not a public officer who could maintain a bill to re- 


103 
Point VI. 


strain his discharge, made the following dictum 
upon the subject here at issue: 


“A public officer is not a natural growth of 
the soil, and can be created only by the Leg- 
islature or by some municipal board or body 
authorized by the Legislature to create a pub- 
lic office.” 


Meyers vs. Mayor, 69 Hun, 291, supra, and Eck- 
erson vs. City, 80 A. D., 12, supra, affirmed 176 
N. Y., 609, on opinion below, held the same propo- 
sition with the same dictum. 

In People vs. Cocks, 172 A. D., 858 (2nd D.), 
supra, the converse of the situation presented in 
Healey vs. Dudley, supra, directly came up and 
held in accordance with the dictum in that case. 
It involved the validity of Chapter 11, Laws 1915, 
which gave to town boards the power to fix by 
resolution the salaries not exceeding $1,500 of Jus- 
tices of the Peace. It was claimed that this was 
in violation of Article III, Section 1, of the Con- 
stitution, but the Court held not, saying that: 


“The fixation of salaries of municipal of- 
ficers is largely a municipal matter, though 
the Legislature may, and in many cases does, 
exercise that power itself. There is no prec- 
edent cited that a statute giving a locality, 
through its authorized agents, a power to fix 
the salaries of its officers or employees is an 
unlawful delegation of legislative powers” 
(page 739). 


In this case the decision of People vs. Klinck 
Packing Co., 214 N. Y., 121, which was relied on 


104 


PoInT VL 


by the plaintiffs below, was distinguished upon the 
same grounds on the which the Cram case was dis- 
tinguished in People vs. Sing Sing, supra. 

In City vs. Trustees of Sailors’ Snug Harbor, 180 
N. Y., 527 (supra), this Court affirmed on the 
opinion below the decision of the Appellate Divi- 
sion for the First Department reported in 85 A. D., 
355. This case held that the Superintendent of 
Buildings in the City of New York continued to 
have exclusive jurisdiction over the erection of 
fire escapes in the Borough of Manhattan, notwith- 
standing the subsequent passage of the General 
Labor Law of the State, which was claimed to have 
transferred such jurisdiction to the State Factory 
Inspector. The Appellate Division, whose opin- 
ion was adopted by this Court as aforesaid, stated 
that the local act was not to be taken as destroyed 
by the general act “in the absence of an express 
repeal” (page 359). 

Hellyer vs. Prendergast, 176 A. D., 383 (supra), 
decided by the Second Department on January 5, 
1917, is the latest case we have observed on the 
subject. It upheld an ordinance of the City of 
New York which prohibited the appointment or 
employment in the city service of any persons who 
were not citizens or residents in good faith of the 
State. 

In Norris vs. City of Brooklyn, 19 Hun, 296, 
supra, the Brooklyn Charter of 1875 had author- 
ized the heads of departments to employ the neces- 
sary clerks and fix their salaries. An Act of 1877 
authorized the common council to fix and regulate 
salaries. Held, that the Act of 1877 did not re- 
peal the provisions of the Act of 1873, but until 
the Common Council acted, the heads of depart- 
ments could continue to fix salaries. 


105 
Point VI. 


- The discretion vested in a Legislature by the 
broad provision of the constitution empowering 
it “to provide for the organization of cities” was 
67 Fla., 181, 190, supra, discussing similar provi- 
sions of the Florida Constitution and upholding 
a delegation of power fully as broad ag the one now 
before the court (pages 190, 191, 193; for facts see 
supra). z 


“The section of the Constitution empower- 
ing the Legislature ‘to establish and to 
abolish municipalities, to provide for their 
government, to prescribe their jurisdiction and 
powers, and to alter or amend the same at any 
time,’ does not prescribe the manner by which 
or the instrumentalities through which the 
Legislature in dealing with municipalities 
shall ‘provide for their government’ or ‘pre- 
scribe their jurisdiction and powers.’ In the 
absence of organic direction or limitation, the 
Legislature may adopt any appropriate in- 
strumentalities in discharging its duty ‘to pro- 
vide for the government’ of a municipality. 
Purely local regulations may as legally and 
more conveniently be provided through muni- 
cipal governments, and liberal use of muni- 
cipalities for local governmental purposes is 
clearly contemplated by the quoted provisions 
of the Constitution. 

The express authority given to the Legis- 
lature by the constitution to ‘prescribe’ the 
‘powers’ of municipalities, and ‘to provide for 
their government,’ is not subject to implied 
limitations that would curtail the real intent 
and purpose of the authority expressly con- 
ferred as disclosed by a consideration of the 


166 
Point VI. 


language used and the subject matter upon 
which it operates. 

While under the express authority ‘to pro- 
vide for the government’ of municipalities and 
‘prescribe their jurisdiction and powers and 
to alter or amend the same at any time,’ the 
Legislature cannot delegate to a municipality 
its general lawmaking power for the State, 
nor confer a power that violates any other 
express provision of organic law, nor confer 
‘powers’ other than for municipal purposes, 
yet the Legislature has a wide discretion in 
the government it may provide and in the 
powers it may prescribe for a municipality, 
and also in the means and instrumentalities 
it may use in providing the government and 
prescribing the powers, when organic law is 
not plainly violated. See Erickson vs. City 
of Des Moines, 137 Iowa 452, 115 N. W. Rep., 
Lites 

“Neither the Constitution nor the common 
law defines the line of separation between the 
powers that shall be exercised directly by the 
Legislature, and those that may be indirectly 
exercised through delegated authority con- 
ferred upon municipal governmental agencies. 
Where the Legislature has authority to pro- 
vide a governmental regulation, and the or- 
ganic law does not prescribe the manner of 
adopting or providing it, and the nature of 
the regulation does not require that it be af- 
forded by direct legislative act, such regula- 
tion may be provided either directly by the 
legislative, or indirectly by the legislative use 
of any appropriate instrumentality, where no 
provision or principle of organic law is there- 


107 


Point VI. 


by violated. If this rule is not recognized, 
many useful governmental regulations may be 
practically unattainable to the detriment of 
the public, when in the language of the Con- 
stitution the ‘government is instituted for the 
protection, security and benefit of the citizens.’ 
This salutary principle is observed with 
reference to administrative boards and officers, 
and it is specifically applicable to powers that 
may be conferred upon municipalities for local] 
governmental purposes. Such a principle is 
particularly useful in our system where the 
Constitution in fixing the status and powers 
of municipalities expressly authorizes the 
Legislature ‘to provide for their government’ 
and ‘to prescribe their jurisdiction and powers, 
and to alter or amend the same at any time,’ 
by local or special laws’ to meet the inherently 
varied local conditions and requirements that 
are particular to this State, in the interest of 
the public welfare.” 


In State ex rel. Gentry vs. Mayor, etc., of Village 
of Dodson, 123 La., 903, the Court upheld the con- 
stitutionality of an act providing as follows: 


“The mayor and board of alderman of every 
city, town and village shall have the care, 
management and control of the city, town or 
village and its property and finances, and shall 
have power to enact ordinances for the pur- 
poses hereinafter named and such as are not 
repugnant to the laws of the state and such 
ordinances to alter, modify and repeal and 
they shall have power to provide for the elec- 
tion of such municipal officers other than those 


108 
Point VI. 


required by this act as may be fotind neces- 
sary, to prescribe the duties and to fix the 
compensation of all officers and employees, 
and to require bonds with sureties for the per- 
formance of duties from all officers and em- 
ployes;’ and sustained the action of a village 
council in fixing the compensation of the Mar- 
shal. 


In City of Woodward vs. Leech, 20 Cal. App., 15, 
18, 19, supra, the Court said, in upholding the con- 
stitutionality of an act which authorized the City 
Government to consolidate certain offices by ordi- 
nance: 


“Tt is not, of course, necessary for the Leg- 
islature to prescribe the duties of all city offi- 
cers. This power may be conferred upon the 
city and it is certainly competent for the Leg- 
islature to authorize the city to make changes 
in the duties of the various officers when it is 
deemed for the best interests of the commu- 
nity to do so.” 


109 
POINT VII. 


The Court below erred in holding 
that the Act violates Article XII, Sec- 
tion 1 of the Constitution by authoriz- 
ing (as the Court assumed) the re- 
moval of the existing tax limit. 


The reasoning of the Court below is that the ex- 
isting charter limits the rate of municipal tax- 
ation; that the present act permits the City Coun- 
cil to do away with that restriction; -and that 
thereby the act violates the command of the consti- 
tution requiring the Legislature to restrict the 
power of taxation in municipalities. 

The Municipal Empowering Act, which dealt 
with the question of powers as distinguished from 
the question of machinery covered by the present 
act, would have been even more subject to this at- 
tack if there had been any basis for it, but never- 
theless, it has been approved by the courts: 


Mills vs. Sweeney, 219 N. Y., 213, 221-2: 

Hammitt vs. Gaynor, 82 Misc., 196-199; 
affirmed without opinion, 165 A. D., 
909 ; 

Hellyer vs. Prendergast, 176 A. D., 388, 
supra; 

Gibbs vs. Luther, 81 Misc., 611-616; af- 
firmed without opinion, 158 A. D., 951. 


We submit, first, that the act does not even at- 
tempt to authorize the abolition of the tax limit, 
and second, that whether the tax limit should or 
should not remain in force was a matter entirely 
within the discretion of the Legislature, third, That 
if restrictions are essential they exist in other acts 


110 
Port VII. 


which are binding on the new city council; and 
fourth, that even if it were otherwise, the effect 
would be merely that the prior restriction- was 
not validly repealed and still remains effective. 


FIRST.—The Council is not author- 
ized by the act to do away with the 
tax limit. 


The restriction in question is contained in Sec- 
tion 176 of the City Charter (Laws of 1897, Ch. 
760), which authorizes the council to raise moneys 
by tax annually, and is as follows: 


“Provided, that the amount of the tax 
raised in any year for the aforesaid city ex- 
penses (excluding the amount to be raised for 
State and county purposes) shall not exceed 
one dollar and seventy cents upon every one 
hundred dollars of the assessed valuation of 
taxable property in said city.” 


This is very plainly a limitation on the extent of 
the taxing power, as distinguished from a regula- 
tion of its exercise. It does not tell the council in 
what manner it must proceed, but fixes a limit on 
its power. If we are right in our contention above 
that the act delegates to the council only the regu- 
lation of the exercise of existing powers without 
enlarging or affecting the extent of those powers, 
it follows that the tax limit provision remains in 
force and the council is not even sought to be au- 
thorized to do away with it. The present act no- 
where in terms confers any power to tax; it deals 
only with the exercise of the existing power. Any 
doubt on this point should be resolved in favor of a 


111 
Point VII. 


construction, which will make the act, in the opin- 
ion of the Court, reasonable and constitutional 
(see discussion on that subject, infra). 


SECOND.—Even if the act had au- 
thorized the removal of the tax limit, 
it would have been within the power 
of the Legisiature. 


The provision of Article XII, Section 1, is that 


“It shall be the duty of the Legislature to 
provide for the organization of cities and in- 
corporated villages, and to restrict their power 
of taxation, assessment, borrowing money, 
contracting debts, and loaning their credit, so 
as to prevent abuses in assessments and in 
contracting debt by such municipal corpora- 
tions.” 


This is a command to the Legislature to impose 
such restrictions as it deems wise for the purposes 
mentioned. It does not require the Legislature to 
impose any particular restrictions and furnishes 
no test by which a court could judge whether the 
command of the Constitution has been complied 
with. Consequently, it is a mere general direction 
for the exercise of a political power of a discre- 
tionary nature; the Legislature is the sole judge 
of when and how far it will proceed in pursuance 
thereof; and its action or failure to act cannot be 
reviewed by the courts, who would otherwise be 
substituting their judgment for that of the Legis- 
lature. This is well settled. 

Bank of Rome vs. Village of Rome, 18 N. Y., 38, 
42, 43, sustained an act authorizing the village of 


Lig 
Point VII. 


Rome to subscribe to railroad stock against the ob- 
jection that the power granted had not been re- 
stricted, in compliance with the constitutional pro- 
vision in question. 


“Indefinite as is the rule of restriction pre- 
scribed by this provision, and ill-suited in its 
terms to be judicially applied, it is still both 
salutory and well suited to be the guide of leg- 
islative discretion. It presents to the Legisla- 
ture the general object to be attained, the pre- 
vention of abuses in assessments and contract- 
ing debts, and the general means of attaining 
that object, by restrictions on the powers to be 
conferred on municipal corporations; but it 
leaves to the discretionary power of that body 
the determination of what are abuses, and 
what extent of restriction, on the powers to 
tax, to lay assessments, to borrow, to contract 
debts, to loan credit, will prevent such abuses. 


* * * *% * = * % 


If their judgment has been in any particu- 
lar case erroneous, if the limit which they 
deemed sufficient has proved not narrow 
enough to exclude abuses, surely their judg- 
ment is not to be reviewed and reversed in a 
court of law. The rule is general that a dis- 
cretion committed to one authority is not to be 
reviewed by another. It holds, in regard to 
tribunals, even of the most limited power, and 
it applies at least with equal force when the 
depositary of the discretion is also the deposi- 
tary of the legislative power of the State. 

T conclude, therefore, that the provision in 
question does not set forth any rule by which 


113 
Pornt VII. 


a court can adjudge an act of the Legislature 
to be void. The rule was intended to operate 
upon the conscience and judgment of the Leg- 
islature in passing laws, and we must assume 
that the law in question was enacted by them 
in view of it, and of all the responsibility which 
it imposed, and that in the legislative judg- 
ment this act did so restrict the powers in 
question as to prevent abuses.” 


Followed in 
Matter of Livingston Street, 82. N. Y., 621. 


Townsend vs. Mayor, 16 Hun, 362, 364, affirmed 
77 N. Y., 542, upheld the provision of an act cre- 
ating a board of estimate and apportionment in the 
City of New York, and authorizing it annually to 
determine “such amount as shall be necessary to 
be raised by taxation in the City and County of 
New York for county purposes,” without limit of 
amount, 


“The language of this section clearly recog- 
nizes the right of the Legislature to confer 
upon any city the right to determine what 
moneys should be raised for municipal pur- 
poses under such restrictions as the Legisla- 
ture may see fit to impose. 

There is no limitation in the Constitution 
which at all affects the right of the Legislature 
to place the power of determining the amounts 
to be raised for municipal purposes in the 
hands of such municipal officers as they may 
see fit, and their power, unless so limited, has 


Be 
Point VII. 


been held to be in the case above cited, in all 
respects relating to taxation, supreme. The 
only limitation of this power contained in the 
Constitution is that providing that the Legis- 
lature shall restrict the power of taxation of 
cities and villages. That the Legislature is the 
sole judge of what restrictions shall be im- 
posed upon taxation by municipal corpora- 
tions, in pursuance of this requirement of the 
Constitution, has been frequently held by the 
courts of this State (People ex rel. Griffin vs. 
The Mayor of Brooklyn, 4 N. Y., 489; The 
Bank of Rome vs. The Village of Rome, 18 id., 
38). And the courts have no power to review 
the action of the Legislature.” 


Under these authorities the Legislature was un- 
der no duty to establish any limit on the amount 
to be raised by tax. It was within its discretion 
to establish such a limit and to repeal it at any 
time; and if the legislature could itself repeal the 
limitation, it could provide for its repeal conse- 
quently upon the taking of lawful action by the 
city council under the power delegated to it (see 
supra). 


THIRD.—Ifi restrictions are essen- 
tial, they exist in other laws which 
are binding on the new City Council. 


Restrictions imposed by the legislature, in the 
exercise of its discretionary power, on the taxing 
power and on the debt-incurring power, are to be 
found throughout the Tax Law, in sections 5 to 20 
inclusive and section 84 of the General Municipal 


Lis 
Point VII. 


Law, and in section 23, subdivision 2-a of the Gen- 
eral City Law (the Municipal Empowering Act), 
all of which are general laws of the state applicable 
to all cities, and are continued in force by the 
present act, as shown above; also in various other 
provisions of the Watertown Charter (Laws of 
1897, chapter 760, sections 173 to 226, 295); and 
See also sections 92 (as amended Laws of 1914, 
chapter 4), 205 and 300 of the charter, requiring 
taxpayers’ votes for certain purposes, all of which 
provisions are expressly continued in force by sec- 
tions 8, 10 and 37, last clause, of the present act. 


FOURTH.—Even if the Act did at- 
tempt to authorize an abolition of the 
tax limit, and even if such authoriza- 
tion would have been beyond the lez- 
islative discretion, the only effect 
would be that the old restriction has 
never been repealed and still re- 
mains effective. 


The preceding answers which we have given to 
this objection are, we submit, clearly sound, but it 
seems clear also that the whole objection is imma- 
terial. If the Legislature had no power to repeal 
the old existing restrictions, its effort to do so was 
necessarily unsuccessful and the restriction still 
remains and limits the power of the City Council, 
and so, even on the theory of the Court below, the 
provisions of Article XII, Section 1, remain satis- 
fied. 


116 
POINT VIII. 


The Act does not violate Article 
XII, Section 2, requiring submission 
of special city bills to the local au- 
thorities. 


This objection was not sustained by the Court 
below, but as it was presented by counsel, we shall 
briefly discuss it. 

The claim of counsel was that the bill ought to 
have been submitted to the Mayor or the Mayor 
and Council before it could become effective,—this 
because of the provisions of Article XII, Section 2 
of the Constitution. 

The terms of the Constitution, however, explicit 
ly limit this requirement to special city laws and 
certainly this act is not such a special law. 

The argument of counsel to the effect that even a 
general acts which repeal special laws must be sub- 
mitted to the local authorities leads to the prepos- 
terous result that the Legislature is to be regarded 
as abdicating all power of general city legislation 
the moment it passes any special city law. 

Counsel’s further argument that this is to be in- 
terpreted as a special city law because it may oper- 
ate, and is intended to operate, differently in differ- 
ent cities to the extent of superseding provisions 
of their special charters, was equally unsound, for 
the same reason that it would preclude the Legisla- 
ture from exercising its constitutional power of 
dealing with cities by general act. This very point, 
was made and overruled in Hammitt vs. Gaynor, 82 
Misc., 196, 199, affirmed without opinion in 165 A. 
D., 909, supra. 

The whole question has been closed, however, by 
the decision of this Court in Koster vs. Coyne, 


117 
Pornt VIII. 


184 N. Y., 494, sustaining the Second Class 
Cities Law (Laws of 1898, ¢. 182, as amended by 
c. 501 L. 1905) against this precise objection. If 
it is urged that the case particularly involved there, 
was of a city not certainly to be affected by the act, 
the same is true under this law because at the time 
of its passage its effect in superseding the charter 
of any city at all was doubtful because it depended 
upon subsequent action to be taken in the several 
cities. 

Attention may also be directed not only to Ham- 
mitt vs. Gaynor, supra, but also to the general rule 
laid down in St. John. vs. Andrews Institute, 191 
N. Y., 254, 270, and reiterated in People ex ret. 
Central Trust Co. vs. Prendergast, 202 N. Y., 188, 
195, with reference to this section of the Constitu- 
tion that 


“Tf the act relates to persons, places and 
things as a class and is neither local nor tem- 
porary, the mere fact that its practical effect 
is special and private does not necessarily 
prove that it violates constitutional provisions 
against special legislations.” 


As was said in Gubner vs. McClellan, 130 A. D., 
val hey @4— am 

“The argument that a provision, special in 

locality, making an act pro tento local, has 

been rejected repeatedly by the courts. Such 

a rule would make it impossible for the Leg- 

islature in many cases to- pass a law adapted 

to the diversified conditions and means of the 
different localities of the State.” 


And see 


Paul vs. Gloucester County, 50 N. J. L, 
585, 609. 


118 
POINT IX. 


The Court below erred in its intima- 
tion that the powers conferred on 
the City Council by this Act did not 
comply with the guaranties of the 
Federal Constitution requiring a re- 
publican form of government, 


It is evident from the Court’s opinion that this 
was regarded rather as “an interesting question” 
than a constitutional objection for serious consid- 
eration (fol. 223). 

Of course the attribution to a representative and 
elective council of the sort of powers granted un- 
der this act cannot be a violation of the right to a 
republican form of government, and in any event 
the United States Supreme Court has directly held 
that no Court has constitutional power to decide 
such a question. 


Pacific Telephone and Telegraph Co. vs. 
Oregon, 223 U. S., 118, dismissing writ 
of error to review, 53 Ore., 162. 

Kiernan vs. Portland, 223 U. S8., 151, dis- 
missing writ of error to review, 57 Ore., 
454, 

Denver vs. New York Trust Co., 229 U.S., 
128, 141. 


119 
POINT X. 


An Act of the Legislature will not 
be declared unconstitutional unless 
it clearly violates some provision of 
the Constitution; and every presump- 
tion must be indulged against such a 
eonstruction of the Act as would in- 
validate it. This is especially true 
where the results of invalidation 
would be so serious as in this case. 


The questions raised in this case should be con- 
sidered in the light of the established rule that a 
law will not be declared unconstitutional unless it 
clearly appears to violate some express or implied 
restraint on legislative power, and that the burden 
of showing its invalidity rests on those who attack 
it. 

People vs. Draper, 15 N. Y., 532, 543; 

Metropolitan Board of Excise vs. Barrie, 
34 N. Y., 657, 668, 669; 

Waterloo Woolen Manufacturing Co. vs. 
Shanahan, 128 N. Y., 345, 357; 

- Koch vs. Mayor, 152 N. Y., 72, 75; 

People ex rel. Simon vs. Bradley, 207 
N.Y., 592; 610; 

Willis vs. City of Rochester, 219 N. Y., 
427, 432. 


All the main points of the objections raised by 
the court below depend upon constructions of the 
act which we have shown to be not only unfounded 
but excessively strained. None of them consist 
with the plain spirit and purpose of the act. 

But even if they were doubtful they cannot pre- 
vail, on a constitutional question, against the other 
constructions which would sustain the act. 


120 


POINT X. 


The Court will hardly need citation of authori- 
ties on this proposition, but the following are 
among the multitude of cases on the point: 


Clarke vs. Rochester, 28 N. Y., 605, 637. 

People e rel. Simon vs. Bradley, 207 N. Y., 
592, 610, 611, collecting the authorities. 

Tauza-vs. Susquehanna Coal Co., 220 
N. ¥., 259, 267. 

Dollar Co. vs. Canadian Car & Foundry 
Co., 220 N. Y., 270, 275. 


The situation is especially serious here, the City 
of Watertown having by formal vote of its citizens 
adopted this charter and being under the necessity 
for making some provision for its government 
thereunder. 

The city governments of Niagara Falls and New- 
burgh would also be thrown into chaotic conditions 
if this act is held unconstitutional. 

Both of these cities, like the city of Watertown, 
adopted the commission manager plan (Plan C) 
under the optional City Government Law. It is 
true that in view of the questions raised as to the 
validity of the law, each of these cities procured 
the enactment of a special legislative charter; but 
these charters were mainly confirmatory in their 
nature, and were by their express terms supple- 
mentary to the provisions of the Optional City 
Government Law (Laws 1916, ch. 530, page 6, 
Subd. 3; pages 56, 326, 330; Laws 1916, ch. 575, 
§§8, 59). <A holding that the present act is un- 
constitutional would involve in doubt the whole 
government of these two cities, as well as that of 
Watertown. In fact, since the decision in the case 
at bar, the court below has held that the necessary 


121 
POINT X. 


effect of that decision is to render null and void 
the existing city government of Niagara Falls 
(People ex rel. Ferguson vs. Vroman, App. Div., 
Fourth Department, October 19, 1917, now pending 
in this Court, return filed October 29, 1917.) 
Other cities, too, are awaiting the clearing up of 
their rights by the determination to be made by 
this Court in the case at bar. 

The serious results which would follow from 
holding the statute invalid should have some weight 
with the Court in considering the construction to 
be put upon it. 


Ramsey vs. People, 19 N. Y., 41, 52, 53. 
People ex rel. Carter vs. Rice, 1385 N. Y., 
473, 506, 507. 


122 
POINT XI. 


The objections chiefly relied on by 
the Court below are against provi- 
sions of the Act which are not essen- 
tial to its main operation but are sep- 
arable. 


Under the principle that unconstitutional 
clauses do not invalidate an entire statute if they 
are separable (Village of Saratoga Springs vs. 
Saratoga Gas Company, 199 N. Y., 1238, at page 
131; People vs. Klinck Packing Co., 214 N. Y., 
121; Dollar Co. vs. Canadian Car & Foundry Co., 
220 N. Y., 270, 278, 289), we propose to recapitu- 
late here each of the objections above discussed on 
the merits, and discuss their separability. 

The objection relative to control of the so-called 
matters of state interest such as taxation, public 
safety, health and charity, relate plainly to separa- 
ble features because the existing boards on those 
subjects can be continued without essential inter- 
ference with the new charter as a whole. They 
affect only details of the machinery. 

The objection relative to repealing power in 
these fields involves precisely the same situation. 

The objection founded on Barto vs. Himrod to the 
effect that the local ordinance power is not defined 
with sufficient completeness is also separable, be- 
cause if this local ordinance power fails as un- 
constitutional, the old power would still remain to 
be exercised by the new City Council. 

The objection on the ground that the act elimi- 
nates necessary restrictions to the taxing power is 
clearly separable for the reason we have stated 
above in Point VII—namely, if the restriction could 
not validly have been repealed then the effort to 
repeal it was ineffective and it still remains. 


ted 


i) 


123 
Point XI. 


The objection that the act is one of those special 
city laws which is subject to the veto of the Mayor, 
is, of course, radical if sound. 

The objection that the act violates the guaranties 
of republican form of government would also be 
radical if sound. 


The main object of the act, to allow the people 
of the city to adopt a simplified form of govern- 
ment, can still be accomplished, the people of the 
City of Watertown can still effectuate their desire 
of substituting for the existing Mayor and council 
government a commission-manager form of govern- 
ment, even if the entire grant of power to reorganize 
the city government were denied it and the new 
council left entirely subject to the same charter 
restrictions now restraining the present council. 

The secondary object of the Act, to enable the 
city to attain a greater degree of efficiency in local 
self-government by empowering the council to 
regulate and control the details of the city admin- 
istration, can still be given effect, if it should be 
held that some one or more of the subjects over 
which that control extends could not constitution- 
ally be committed to local control. 

We submit that, even if the Court should sustain 
one or more of the objections which are thus 
separable, and all of which we contend are un- 
founded, it does not follow by any. means that the 
entire Act should be declared null and void, but 
the valid portions should at all events be saved 
and the will of the legislature and of the people 
of Watertown effectuated so far as the Court may 
deem constitutionally possible. 


124 
CONCLUSION. 


The judgments should be reversed 
and judgment directed for the de- 
fendants. 


LAURENCE ARNOLD TANZER, 
Counsel for the Municipal Government 
Association of New York State, 
233 Broadway, 
New York City. 


WINFRED T. DENISON, 
of Counsel, 
15 Broad Street, 
New York City. 


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